Delhi High Court
Indiamart Intermesh Limited vs Mr Sameer Samim Khan & Ors. on 10 October, 2023
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 631/2022 & I.A. 14980/2022, I.A. 14984/2022
INDIAMART INTERMESH LIMITED ..... Plaintiff
Through: Ms. Deepika Pokharia, Mr.
Nitin Sharma and Mr. Naman Tandon,
Advs.
versus
MR SAMEER SAMIM KHAN & ORS. ..... Defendants
Through: Ms. Hetu Arora Sethi, ASC for
GNCTD with Mr. Arjun Basra, Adv. for
IFSO Spl. Cell, Delhi Police
Ms.Shweta Sahu, Adv. for D-3
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (O R A L)
% 10.10.2023
1. The plaintiff is in the business of running an electronic business-to-business (B2B) portal under the webpage www.indiamart.com and associated copyrighted applications. Goods and services can be advertised and sold by anyone who so chooses, over the web portal of the plaintiff.
2. It is claimed that the plaintiff is India's first B2B directory which commenced operations in 1996. As on date, it is asserted that the plaintiff has over 149 million buyers, who have access to 7.1 million suppliers for over 83 million products. The plaintiff's copyrighted App is stated to have 10 million downloads as on 30 Signature Not Verified CS(COMM) 631/2022 Page 1 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26 December 2021 on the Google Play Store. The plaintiff has been awarded the 'Video Content in a Business Website-Special Mention' at Video Media Awards and Summit, 2019; 'Best Online Classified Website' at Drivers of Digital Summit & Awards, 2018; 'Best Business App Award' at GMASA, 2017; Manthan Award, 2013 under the 'E-business and Financial Inclusion' category for its path-breaking and low-cost solution to SMEs called buy-leads, launched in 2012; 'Special Contribution Award' at WASME-Super SME Awards, 2016 and 'Best Online Classified Website Award' at Drivers of Digital Awards, 2016, etc.
3. The mark "INDIAMART" was coined by the plaintiff in 1996, and the domain name "indiamart.com" was registered on 8 March 1996. The plaintiff is also the holder of the following registrations under the Trade Marks Act, 1999, which are valid and subsisting as on date:
S. Registration
Mark Type Class
No. No.
WORD MARK
1 INDIAMART 6 1693946
(CAPITAL)
WORD MARK
2 INDIAMART 9 1693949
(CAPITAL)
WORD MARK
3 INDIAMART 11 1693951
(CAPITAL)
WORD MARK
4 INDIAMART 13 1693953
(CAPITAL)
WORD MARK
5 INDIAMART 15 1693955
(CAPITAL)
WORD MARK
6 INDIAMART 21 1693961
(CAPITAL)
WORD MARK
7 INDIAMART 25 1693965
(CAPITAL)
8 INDIAMART WORD MARK 26 1693966
Signature Not Verified
CS(COMM) 631/2022 Page 2 of 12
Digitally Signed
By:HARIOM
Signing Date:19.10.2023
12:36:26
(CAPITAL)
WORDMARK
9 INDIAMART 27 1693967
(CAPITAL)
WORDMARK
10 INDIAMART 28 1693968
(CAPITAL)
WORDMARK
11 INDIAMART 29 1693969
(CAPITAL)
WORDMARK
12 INDIAMART 30 1693970
(CAPITAL)
WORDMARK
13 INDIAMART 31 1693971
(CAPITAL)
WORDMARK
14 INDIAMART 32 1693972
(CAPITAL)
WORDMARK
15 INDIAMART 33 1693973
(CAPITAL)
WORDMARK
16 INDIAMART 34 1693974
(CAPITAL)
WORDMARK
17 INDIAMART 35 1693975
(CAPITAL)
WORDMARK
18 INDIAMART 36 1693976
(CAPITAL)
WORDMARK
19 INDIAMART 37 1693977
(CAPITAL)
WORDMARK
20 INDIAMART 39 1693979
(CAPITAL)
WORDMARK
21 INDIAMART 40 1693980
(CAPITAL)
WORDMARK
22 INDIAMART 41 1693981
(CAPITAL)
WORDMARK
23 INDIAMART 42 1486285
(CAPITAL)
DEVICE MARK
24 35 1693921
WORDMARK
25 Indiamart 35 2997209
(SMALL)
WORDMARK
26 Indiamart 42 2997207
(SMALL)
27 DEVICEMARK 42 1693922
DEVICEMARK I
28 9 1150935
(Italics)
29 INDIAMART DEVICEMARK I 35 1267627
Signature Not Verified
CS(COMM) 631/2022 Page 3 of 12
Digitally Signed
By:HARIOM
Signing Date:19.10.2023
12:36:26
(Italics)
DEVICEMARK I
30 INDIAMART 42 1267628
(Italics)
DEVICEMARK II
31 (indiamart with 35 1693923
LABEL)
DEVICEMARK II
32 (indiamart with 42 1693924
LABEL)
DEVICEMARK III
33 (indiamart with 35 1693925
LOGO)
DEVICEMARK III
34 (indiamart with 35 1693927
LOGO)
DEVICEMARK III
35 35 1693929
(LOGO)
DEVICEMARK III
36 (indiamart with 35 1693931
LOGO)
DEVICEMARK III
37 (indiamart with 35 1693933
LOGO)
DEVICEMARK III
38 (indiamart.com with 35 1693935
LOGO)
DEVICEMARK III
39 (indiamart.com with 35 1693937
LOGO)
DEVICEMARK III
40 (indiamart with 42 1693932
LOGO)
DEVICEMARK III
41 (indiamart.com with 42 1693934
LOGO)
Signature Not Verified
CS(COMM) 631/2022 Page 4 of 12
Digitally Signed
By:HARIOM
Signing Date:19.10.2023
12:36:26
DEVICEMARK III
42 (indiamart.com with 42 1693936
LOGO)
DEVICEMARK III
43 (indiamart.com with 42 1693938
LOGO)
DEVICEMARK III
44 (indiamart with 42 1693928
LOGO)
DEVICEMARK III
45 (indiamart with 42 1693926
LOGO)
DEVICEMARK III
46 42 1693930
(LOGO)
DEVICEMARK IV
47 35 1693939
(indiamart.com)
DEVICEMARK IV
48 42 1693940
(indiamart.com)
DEVICEMARK V
49 (indiamart with 42 2130079
label)
DEVICEMARK V
50 (indiamart with 35 2130078
label)
51 IIL WORDMARK 35 1538724
DEVICEMARK
(INDIAMART
52 35 2210045
LEADERS OF
TOMORROW)
WORDMARK
INDIAMART
(INDIAMART
53 LEADERS OF 35 2185079
LEADERS OF
TOMORROW
TOMORROW)
Signature Not Verified
CS(COMM) 631/2022 Page 5 of 12
Digitally Signed
By:HARIOM
Signing Date:19.10.2023
12:36:26
DEVICEMARK V
54 (indiamart.com with 42 2130075
label)
INDIAMART
55 LEADING WORDMARK 35 3801250
SUPPLIER
INDIAMART
56 WORDMARK 35 2003607
TRUSTSEAL
INDIAMART
57 WORDMARK 35 3992333
BUYLEAD
INDIAMART BUY
58 WORDMARK 35 3995431
LEAD
INDIAMART
FEATURED
59 WORDMARK 35 3848928
PREMIUM
LISTING
INDIAMART
INDUSTRY
60 WORDMARK 35 3848935
LEADERSHIP
PACKAGE
INDIAMART
61 WORDMARK 35 3848979
PRIME
INDIAMART
62 CITY PREMIUM WORDMARK 35 3848559
LISTING
4. The plaintiff is also the registrant of the following domain names which include "INDIAMART" as a part thereof:
S. No. Domain names
1. indiamart.com
2. indiamart.co.in
3. indiamart.ind.in
4. indiamart.net.in
5. indiamart.org.in
6. paywithindiamart.co.in
7. paywithindiamart.net
8. paywithindiamart.com
9. paywithindiamart.in
10. indiamart.co.nz
11. indiamart.co.uk
12. indiamart.sg Signature Not Verified CS(COMM) 631/2022 Page 6 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26
13. indiamart.jp
14. indiamartpay.com
15. indiamart.org.cn
16. indiamart.com.cn
17. indiamart.net.cn
18. indiamart.ph
19. newindiamart.com
20. indiamart.com.tw
21. indiamart.tv
22. indiamart.net
23. b2bindiamart.com
24. myindiamart.com
25. indiamartpay.in
26. indiamartpay.co.in
27. indiamart.at
28. indiamartb2b.com
5. The sales revenue of the plaintiff has multiplied from 2019 to 2022 and, in 2021-22, till December 2022, was in the region of ₹ 550 crores. Over ₹ 1.63 crore was invested by the plaintiff towards advertising its services in 2020-2021 alone.
6. The plaintiff also claims that its "INDIAMART", , , , and marks constitute "original artistic works" within the meaning of Section 2(c) of the Copyright Act, 1957.
7. The plaintiff is aggrieved by the illegal appropriation, by the defendant, of "INDIAMART" as well as the distinctive Signature Not Verified CS(COMM) 631/2022 Page 7 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26 logos , , , , , as part of its domain names, as is apparent from the e-mail Ids [email protected], [email protected] and india-mart.co and wecare@india- mart.co.
8. Defendant 2-GoDaddy.com LLC is the domain name registrar (DNR) for the said domain names. A screenshot from the defendant's website is also thus provided, to emphasise the poaching, by the defendant, of the plaintiff's trade mark and logo:
9. Ms. Pokharia, learned Counsel for the plaintiff, submits that the two gentlemen, whose photographs are reflected in the afore- extracted screenshot are in fact the promoters of the plaintiff. It is submitted that the use, by the defendant, of "INDIAMART" amounts to clear infringement of the plaintiff's registered trade mark and passing off, by the Defendant 1, of its services as those provided by Signature Not Verified CS(COMM) 631/2022 Page 8 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26 the plaintiff.
10. Predicated on these submissions, the plaintiff has instituted the present suit, seeking a decree of permanent injunction, restraining Defendant 1 and all others acting on his behalf, from using the trade mark "INDIAMART" or any deceptive variation thereof, which is identical or confusingly similar to the plaintiff's registered trade mark "INDIAMART" as well as from using the artistic works vested in the artistic representation of the logos , , , , , comprising the colour combination, get-up, layout, arrangement of matter, in any manner, thereby amounting to the infringement of the copyright of the Plaintiff residing in the artistic work. Additionally, the plaint prays that the Defendant 2 be directed to immediately take down/suspend or block the domain names https://indiamart.co/ and [email protected] and to disclose the identity of the persons in whose name the domain names have been registered.
11. Defendant 1 has not filed any response to the present suit and has remained continuously absent. Accordingly, he was set ex-parte by order dated 12 September 2023.
12. As of today, the only surviving substantive defendants are Defendants 1 to 4, who are Signature Not Verified CS(COMM) 631/2022 Page 9 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26
(i) Mr. Sameer Samim Khan - Defendant 1
(ii) GoDaddy.com LLC - Defendant 2
(iii) Reliance Jio Infocomm Ltd. - Defendant 3
(iv) Union Bank of India - Defendant 4
13. In my considered opinion, no contentious issue arises which would require evidence to be led. The case is clear as crystal. Defendant 1 has clearly been using the plaintiff's registered "INDIAMART" trade mark and has also copied the plaintiff's logo to provide its services.
14. Matters have progressed to the extent where Defendant 1 has in fact also put up the picture of the plaintiff's promoters on its website, apparently to mislead consumers into believing an association between the plaintiff and Defendant 1.
15. Apparently, aware of the fact that Defendant 1 has no substantive defence to offer, no written statement has been filed by Defendant 1 till date.
16. Accordingly, the suit shall stand decreed in the following terms:
(i) Defendant 1, his associates, partners, agents, franchisees, representatives, servants, licensees and all other acting for and on his behalf are permanently injuncted from using the trademark INDIAMART or any other mark which is deceptively or confusingly similar to Plaintiff's trademark Signature Not Verified CS(COMM) 631/2022 Page 10 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26 INDIAMART.
(ii) Defendant 1 and others acting on its behalf is further
restrained from using impugned logos , ,
, , , , comprising the
colour combination, get-up, layout, arrangement of matter which are infringing of plaintiff's copyright in the artistic work.
(iii) Defendant 2-GoDaddy.com LLC is directed, forthwith, to transfer the domain names https://indiamart.co/ and [email protected] to the plaintiff for which purpose Ms. Pokharia undertakes to provide the account details of the plaintiff to learned Counsel for Defendant 2, during the course of the day.
(iv) Status quo shall be maintained with respect to the Mobile No. 9372944497 and Bank Account No. 274010100021790, which shall continue to remain frozen.
17. Insofar as the aspect of damages and costs are concerned, Ms. Pokharia prays for punitive damages in the circumstances of the case.
18. Mr. Arjun Basra, who appears on behalf of Cyber Cell, submits that Defendant 1 was operating multiple accounts in which amounts in the region of about ₹ 1.5 crores have been defalcated by Defendant 1 Signature Not Verified CS(COMM) 631/2022 Page 11 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26 from various innocent persons.
19. Ms. Pokharia submits that, as per the status report from Cyber Cell, an amount of ₹ 10 lakhs stands deposited in account number 274010100021790 of the Union Bank of India registered in the name of Defendant 1. This, however, seems only to be the tip of the iceberg.
20. As Defendant 1 has not chosen to contest the present matter or enter appearance, I am inclined to grant punitive damages in favour of the plaintiff and against Defendant 1, especially in view of the manner in which Defendant 1 has resorted to a nefarious scheme to dupe innocent persons, in the process infringing the plaintiff's registered trade mark and representing itself as associated with the plaintiff.
21. Accordingly, the plaintiff is also entitled to a decree for ₹ 10 lakhs against Defendant 1, payable within a period of four weeks from today. Ordered accordingly.
22. The suit stands decreed in the aforesaid terms.
23. Let a decree sheet be drawn up accordingly.
C. HARI SHANKAR, J.
OCTOBER 10, 2023/dsn Click here to check corrigendum, if any Signature Not Verified CS(COMM) 631/2022 Page 12 of 12 Digitally Signed By:HARIOM Signing Date:19.10.2023 12:36:26