Delhi High Court - Orders
Ambuja Cements Limited vs Sudheer Sharma And Ors on 29 May, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 469/2024
AMBUJA CEMENTS LIMITED ..... Plaintiff
Through: Mr. Rajshekhar Rao, Senior Advocate
with Mr. Ajay Singh, Mr. Amit
Kumar, Mr. Vivek Kumar Singh, Mr.
Deepak Khandelwal and Ms.
Vishakha Gupta, Advocates.
versus
SUDHEER SHARMA AND ORS. ..... Defendants
Through: Mr. Neel Mason, Mr. Vihan Dang and
Mr. Ujjawal Bhargava, Advocates for
D-13.
Mr. Saurabh Kumar, Advocate for D-
14.
Mr. Debarshi Dutta, Mr. Mrinal Ojha,
Ms. Tanya Chaudhry and Mr. Arjun
Mookerjee, Advocates for D-15.
Mr. Apoorv Kurup, CGSC with Mr.
Gurjas Singh Narula, Advocates for
D-29 & 30.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 29.05.2024 I.A. 30815/2024(seeking leave to file additional documents)
1. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
2. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
3. Disposed of.
CS(COMM) 469/2024 Page 1 of 10This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:05 I.A. 30816/2024(seeking exemption)
4. Exemption is granted, subject to all just exceptions.
5. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
6. Disposed of.
I.A. 30817/2024(seeking exemption from pre-institution mediation)
7. As the present suit contemplates urgent interim relief, in light of the judgment of Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.
8. Disposed of.
I.A. 30818/2024(seeking exemption from advance service and exemption from compliance of Section 80 of CPC)
9. Issue notice to Defendants No. 20, 21, 23, 24, 27 and 28 to 31. Mr. Apoorv Kurup, CGSC for Defendants No. 29 and 30, accepts notice. Reply, if any, be filed within four weeks from today. Rejoinder thereto, if any, be filed within two weeks thereafter.
10. Reply on behalf of Defendants No. 20, 21, 23, 24, 27, 28 and 31 be filed within four weeks from the date of service. Rejoinder thereto, if any, be filed within two weeks thereafter.
11. The Plaintiff alleges that Defendants No. 1 to 12 are perpetrating fraud on the general public by creating a false association with the Plaintiff, resulting in grave financial losses to the public. Considering the nature of controversy involved in the present suit as well as the peculiar facts and circumstances of the case, exemption from effecting advance service on Defendant No. 1 is allowed.
CS(COMM) 469/2024 Page 2 of 10This is a digitally signed order.
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12. Re-notify on 25th October, 2024.
CS(COMM) 469/2024
13. Let the plaint be registered as a suit.
14. Issue summons. Counsel mentioned in appearance above accept notice. They confirm the receipt of paper-book, and waive the right of formal service of summons. Written statement(s) shall be filed within thirty days commencing from today. Upon filing of process fee, issue summons to the remaining Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.
15. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
16. List before the Joint Registrar for marking of exhibits on 28th August, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
17. List before Court for framing of issues thereafter. I.A. 30814/2024(u/O XXXIX Rules 1 and 2 of CPC) 1 2023 SCC OnLine SC 1382.
CS(COMM) 469/2024 Page 3 of 10This is a digitally signed order.
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18. Mr. Rajshekhar Rao, Senior Counsel for Plaintiff, presents the following facts and contentions for an ex-parte ad-interim injunction:
18.1 The Plaintiff, Ambuja Cements Limited, is a leading manufacturer of cement and other construction material in India under the trademark "AMBUJA CEMENTS," which forms an integral element of the Plaintiff's corporate name. This mark was adopted by the Plaintiff in the year 1984.
Over the years, the Plaintiff has secured registrations of the trademark "AMBUJA CEMENT," " ," " " and other derivatives across classes, details whereof are mentioned in paragraph No. 30 of the plaint.
18.2. The Plaintiff has expended considerable financial resources towards promotion of the "AMBUJA CEMENT" marks, which has significantly contributed towards their annual sales. The Plaintiff's turnover from sale of "AMBUJA CEMENT" products and expenditure on advertising for the last three years have been delineated in paragraph No. 32 of the plaint. 18.3 Plaintiff's grievance in the present suit pertains to unauthorized use of the Plaintiff's "AMBUJA CEMENT" trademarks by Defendants No. 1 to 12, who have created fake websites for the purpose of phishing in the guise of offering Plaintiff's products to public across India. As per the complaints received from the aggrieved consumers, Defendants No. 1 to 12 are mispresenting themselves to be the officials/ employees of the Plaintiff- company.
18.4. The Plaintiff had received a complaint, wherein the aggrieved CS(COMM) 469/2024 Page 4 of 10 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06 individual explained that while searching for cement bags on the Google search engine [Defendant No. 13], he came across the website "www.ambujacements.com" which is operated by Defendant No. 1. According to the complaint, Defendant No. 1 falsely presented himself as the Manager of the Plaintiff and offered to supply cement bags at a rate of Rs. 187.5 per bag. Believing the representation to be genuine, the consumer placed an order for 300 cement bags and subsequently transferred Rs. 72,000/- to the bank account of Defendant No. 1. The consumer received an invoice via WhatsApp, which displayed the Plaintiff's trademark and logo, falsely suggesting a legitimate association with the Plaintiff. Despite the payment of Rs. 72,000/-, the goods ordered were not delivered. Instead, Defendant No. 1 deceitfully encouraged the consumer to place additional orders, promising that it would be more efficient to deliver all the orders together. In this regard, reference is made to the following images of the invoices and communications received by the consumer:
CS(COMM) 469/2024 Page 5 of 10This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06 18.5. Similarly, Defendants No. 2 to 12 have created fraudulent websites for "AMBUJA CEMENT" products, mirroring the actions of Defendant No.
1. These websites feature slight variations in their domain names to facilitate their deceptive scheme. The specific details of these impugned websites are outlined in paragraph No. 45 of the plaint. Currently, all of these websites have become inaccessible, with the exception of "www.ambujacements.shop" operated by Defendant No. 12, who is impleaded as John Doe/Ashok Kumar. This pattern among the Defendants underscores a coordinated effort to exploit the Plaintiff's brand reputation, misleading consumers and damaging the Plaintiff's business. 18.6. The Plaintiff does not sell their products online; they distribute exclusively through authorized dealers. Therefore, the creation of fraudulent websites by the Defendants for accepting orders is clearly intended to deceive innocent consumers. To combat this, the Plaintiff has proactively issued disclaimers and warnings in several English and local language newspapers and on their official website to alert and educate the general CS(COMM) 469/2024 Page 6 of 10 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06 public about these deceptive practices.
18.7. The use of Plaintiff's registered "AMBUJA CEMENT" trademarks by Defendants No. 1 to 12 with malicious intent clearly constitutes infringement and passing off of their marks. Furthermore, this activity also falls under the category of cybersquatting, as it involves registering and using domain names that are confusingly similar to the Plaintiff's well- recognized trademarks with the intention to exploit the Plaintiff's brand reputation for illegitimate gain.
19. The Court has considered the afore-noted submissions and examined the record. The afore-noted screenshots and consumer accounts prima facie indicate that Defendants No. 1 to 12 are unauthorizedly using the Plaintiff's trademarks "AMBUJA CEMENT" and " " to lure members of the public into remitting significant amounts of money on the pretext of placing orders for supply of authentic "AMBUJA CEMENT" products. The said Defendants are misrepresenting themselves as being employed or associated with the Plaintiff and targeting unwary persons. To render an impression of authenticity, Defendants No. 1 to 12 are also circulating forged invoices, bills and confirmation letters that mention the Plaintiff's registered trademarks and trade name. Use of the Plaintiff's registered trademarks without their consent, and with an intent to cause consumer confusion, prima facie amounts to infringement of the Plaintiff's trademarks. Defendant No. 1 to 12 are also attempting to pass off their services as those emanating from the Plaintiff, thus affecting the Plaintiff's reputation and goodwill.
CS(COMM) 469/2024 Page 7 of 10This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06
20. In view of the above, the Court finds that the Plaintiff has made out a prima facie case in their favour and in case no ex-parte ad-interim injunction is granted, Plaintiff will suffer an irreparable loss; balance of convenience also lies in favour of the Plaintiff and against Defendants No. 1 to 12.
21. Accordingly, the following directions are issued:
21.1. Till the next date of hearing, Defendants No. 1 to 12, or any person acting on their behalf, are restrained from using Plaintiff's registered trademarks/ trade name including, "AMBUJA CEMENT,"
" ," " ", or any other deceptively similar marks either on their websites or in any other manner, which would amount to infringement of the Plaintiff's trademarks and/ or passing off their business/ services as that of the Plaintiff.
21.2. Defendant No. 13 is directed to de-list/ block/ suspend the following domain names impugned in the suit from its search engine results:
Domain name Defendants No.
ambujacements.com 1, 6, 7, 8 and 9
ambuja.org 2, 3, 6, and 7
ambujacement.ind.in 2, 5
ambujacements.org 2, 4, 5, 6 and 7
ambujacementonline.com 6 and 7
ambujalimited.com 10 and 11
ambujacementonline.co.in 10
ambujalimitedltd.co.in 11
ambujacementltd.in 12
bulkcement.in 12
ambujas.in 12
ambujacements.shop 12
CS(COMM) 469/2024 Page 8 of 10
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06 Ambujacements.in 12 Ambuja.in 12 21.3 Defendant No. 14 shall de-list/ block the LinkedIn page/ account "Ambuja Cement Dealership Online Apply". They shall, within four weeks from today, file in a sealed cover, the complete details concerning the owner of the said LinkedIn page/ name, including the name, contact details, payment details, and IP addresses, as are available with them. A copy of the said documents shall also be provided to counsel for Plaintiff, which shall be strictly used by them for the purpose of investigation and identification of the perpetrators.
21.4. Defendants No. 15 to 18 [Domain Name Registrants] shall lock/ block/ suspend the respective domain names mentioned in paragraph No. 21.2 of this order. They shall, within four weeks from today, file in a sealed cover, the complete details concerning the registrants of the aforesaid domain names, including the name, contact details, payment details, and IP addresses, as are available with them. A copy of the said documents shall also be provided to counsel for Plaintiff, which shall be strictly used by them for the purpose of investigation and identification of the perpetrators. 21.5. Defendants No. 15 to 18 are directed to maintain status quo as to the ownership of the afore-mentioned domain names till further orders. 21.6. Defendants No. 19 to 28 shall, within four weeks from today, file in a sealed cover, the complete KYC documents, including payment details pertaining to the bank account holders of the bank accounts mentioned in paragraph No. 11 of the application. A copy of the said documents shall also be provided to counsel for Plaintiff, which shall be strictly used by them for the purpose of investigation and identification of the perpetrators.
CS(COMM) 469/2024 Page 9 of 10This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06 21.7. Defendants No. 29 [MEITY] and 30 [DoT] are directed to issue an appropriate notification to the telecom and internet service providers to suspend access to the domain names mentioned in paragrah No. 21.2 of this order.
21.8. Defendants No. 32 to 35 are directed to suspend/ temporarily block the phone numbers 9330755273, 9903430703, 7808264001, 6303192816, 7044449896, 9851813442, 7044638844, 7595985735, 8420159357, 9903434961, 8777673335, 8585881470, 8585887284 and 7044450240, as are registered with them. They shall, file in a sealed cover, the details of respective persons, including KYC documents, in whose names the said numbers are registered, within four weeks from today. A copy of the said documents shall also be provided to counsel for Plaintiffs, which shall be strictly used by them for the purpose of investigation and identification of the perpetrators.
22. Issue notice. Counsel for Defendants mentioned in the appearance above, accept notice. Reply, if any, be filed within four weeks from today. Rejoinder thereto, if any, be filed within two weeks thereafter.
23. Upon filing of process fee, issue notice to the remaining Defendants, by all permissible modes, returnable on the next date of hearing. Reply, if any, be filed within four weeks from the date of service. Rejoinder thereto, if any, be filed within two weeks thereafter.
24. Compliance of Order XXXIX Rule 3 of CPC be done with ten days from today.
25. List on 25th October, 2024.
SANJEEV NARULA, J MAY 29, 2024/d.negi CS(COMM) 469/2024 Page 10 of 10 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/06/2024 at 21:33:06