Loreal S.A vs Ashok Kumar And Others & Ors on 28 September, 2021

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Delhi High Court - Orders

Loreal S.A vs Ashok Kumar And Others & Ors on 28 September, 2021

Bench: Sanjeev Narula

$~28
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(COMM) 474/2021
       LOREAL S.A.                                               ..... Plaintiff
                           Through:      Mr. Jayant Mehta, Senior Advocate
                                         with Mr. Shravan Kumar Bansal,
                                         Mr. Rakesh Raushan and Mr. Aditya,
                                         Advocates.
                           versus

       ASHOK KUMAR AND OTHERS & ORS                           ..... Defendants
                   Through: None.

      CORAM:
      HON'BLE MR. JUSTICE SANJEEV NARULA
                   ORDER

% 28.09.2021 I.A. 12605/2021 (seeking exemption from filing original, clear copies, prayer copies and documents with proper margins)

1. Exemption is granted, subject to just exceptions.

2. The Plaintiff shall the exempted documents, compliant with the practice rules, at least one week prior to the next date of hearing.

3. The application stands disposed of.

I.A. 12604/2021 (u/O 11 R 1(4) of the Commercial Courts Act, 2015 r/w Section 151 CPC seeking leave to file additional documents)

4. This is an application seeking leave to file additional documents under Commercial Courts Act, 2015.

5. The Plaintiffs, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.

6. Accordingly, the application stands disposed of.

CS(COMM) 474/2021 Page 1 of 6

I.A. 12606/2021 (seeking exemption to serve the Defendants in advance with supporting affidavit)

7. For the grounds and reasons stated therein, the application is allowed.

I.A. 12607/2021 (seeking exemption from providing complete name, address and details of the D-1)

8. Plaintiff states that the exact name and address of Defendant No. 1 is not available, and the said entity has been impleaded under the name and capacity of Mr. Ashok Kumar.

9. Having regard to the facts noted hereinbelow, the application is allowed and at this stage the Plaintiff is exempted from furnishing the name, address and details of Defendant No. 1.

CS(COMM) 474/2021

10. Let the plaint be registered as a suit.

11. Upon filing of process fee, issue summons to the Defendant by all permissible modes. Summons shall state that the written statement shall be filed by the Defendant within 30 days from the date of receipt of summons. Along with the written statement, the Defendant shall also file an affidavit of admission/ denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.

12. Liberty is given to the Plaintiffs to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/ denial of documents of the Defendant, is to be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any CS(COMM) 474/2021 Page 2 of 6 documents, the same shall be sought and given within the timelines.

13. List before the Joint Registrar for marking of exhibits on 30th November, 2021. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

14. List before Court for framing of issues thereafter.

I.A. 12608/2021 (seeking exemption from effecting advance notice on D- 4 to 6) & I.A. 12609/2021 (seeking exemption from invoking pre institution suit mediation)

15. Issue notice, upon filing of process fee, by all permissible modes returnable on the next date of hearing.

I.A. 12603/2021 (under Order 39 Rules 1 and 2, CPC)

16. The case as set up by the Plaintiff is that it is a society anonymous organized under the Law of France, engaged in the business of manufacture, distribution and sale of a wide range of hair care, skin care, toiletries and beauty products in India.

17. The trademark "L'OREAL" and various stylized labels have been adopted and used since 1900. The Plaintiff manufactures goods under the trademark "L'OREAL" and has acquired goodwill and reputation- which is global in character and extends into India as well. The Plaintiff has several registered trademarks in India as well, details whereof are set out in the plaint.

18. Mr. Jayant Mehta, Senior Counsel for the Plaintiff submits that on 13th September, 2021, an entity by the name of Nicholas Healthcare Limited received a mail from Defendant No. 1, impersonating Plaintiff's Indian CS(COMM) 474/2021 Page 3 of 6 Subsidiary- indicating acceptance of a bid for supplying products. Subsequently, the said entity namely Nicholas Healthcare Limited, asked for certain documents such as GST certificate, Certificate of Incorporation, Copy of Cancelled Cheque, Billing and Delivery address from Defendant No. 1 for proceeding further.

19. On 14th September, 2021, Defendant No. 1, supplied fake and forged GST certificate, Certificate of Incorporation and also forged a cancelled cheque in the name of Plaintiff's Indian Subsidiary. Thereafter, on 20th September, 2021, Plaintiff received an email from one Mr. Subodh Sharma, National Sales Head, Nicholas Healthcare Limited, seeking confirmation whether the emails sent by Defendant No. 1 had actually originated from Plaintiff's Indian Subsidiary or if the same were being misused. In these circumstances, it came to the knowledge of the Plaintiff that Defendant No. 1 was impersonating as an employee of Plaintiff's Indian Subsidiary , using e-mail IDs affixed with the Plaintiff's domain name such as- [email protected], [email protected] and [email protected] ).

20. Mr. Mehta submits that these unknown persons viz. Defendant(s) No. 1- are also using mobile numbers (+91-8097960670) and are also operating the domain name/website www.lorealglobal.in, which is a rogue website and is misleadingly identical to that of the Plaintiff. A complaint has also been made to the Cyber Cell, Crime Branch, Delhi Police, reporting the afore-noted facts. He also submits that the exact address and whereabouts of Defendant(s) No. 1 is unknown, and accordingly, the said entity has been recorded as 'John Doe'- without any address which is to be substituted once the details of Defendant No. 1 are available, upon their appearance.

CS(COMM) 474/2021 Page 4 of 6

Defendant No. 2 is the domain name registrar of the website www.lorealglobal.in. Defendant No. 3 is the telecom service provider for the mobile no. +91-8097960670- which has been used by Defendant No. 1 in furtherance of the fraudulent activities.

21. In view of the above, the Plaintiff has established a prima facie case. The balance of convenience also appears to be in favour of the Plaintiff as it is the owner of a well-known trademark and the Defendants are apparently using a "rogue website", which is identical to that of the Plaintiff's website. In case an ex-parte injunction is not granted, the Plaintiff is likely to suffer an irreparable loss, since the activities of Defendant No. 1 are intended to cause deception in the eyes of public.

22. In light of the above, it is directed as follows:

(i) Till the next date of hearing, Defendant No. 1 and its proprietors/ partners, agents, representatives, distributors, assigns, heirs, successors, stockists and all other acting for and on their behalf are restrained from using the website - www.lorealglobal.in and e-mail addresses -

[email protected], [email protected], [email protected] and or any other email address, website, social media account containing the Plaintiff's trademark "L'OREAL" or by any other mode or manner dealing in or using the Plaintiffs trade-name and trademark/label "L'OREAL" and/or other formative trademarks/labels/variants in relation to their impugned, fraudulent and violative activities and from doing any other acts or deeds amounting to or likely to amount to: (a) Infringement of Plaintiff's aforesaid registered trademark "L'OREAL"; (b) Passing-off and violation of the Plaintiff's rights in the said trademark/label "L'OREAL"; (c) Violation of Plaintiff's CS(COMM) 474/2021 Page 5 of 6 proprietary rights in its trade name including the copyrights of the Plaintiff; and (d) Falsification, unfair and unethical trade practices.

(ii) Directions are issued to Defendant No. 2 (Registrant of the domain name

-www.lorealglobal.in) to furnish complete particulars of Defendant No. 1, along with other information available with it to the Plaintiff, such as payment details while purchasing the impugned domain name and to block access to the impugned domain name/website- www.lorealglobal.in.

(iii) Defendant No. 3 is directed to disclose the user details- along with complete KYC details of the mobile number of the Defendant No. 1 (+91-8097960670)- to the Plaintiff.

(iv) Defendant Nos. 4 and 5 (as mentioned in the memo of parties) shall issue directions to all internet service providers registered under it to block access to the impugned domain name/website bearing URL www.lorealglobal.in.

(v) Further, directions are issued to the Delhi Police to submit a report before this Court in respect of the complaint of the Plaintiff.

23. List before the Court on 8th December, 2021.

SANJEEV NARULA, J SEPTEMBER 28, 2021 nk CS(COMM) 474/2021 Page 6 of 6

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Delhi High Court - Orders