Delhi District Court
Through Its Director/ Ar vs Rss Infotech Pvt. Ltd on 2 August, 2017
IN THE COURT OF ANIL ANTIL, ADDITIONAL DISTRICT JUDGE
SOUTH EAST DISTRICT, SAKET COURTS, ND.
Civil Suit No. 1469/16
M/s Eko India Financial Services Pvt. Ltd.
Through its Director/ AR
Nitin Gupta
Having its registered office at:
547, Mandakini Enclave, Alaknanda,
New Delhi110019 ..........Plaintiff
Versus
1.RSS Infotech Pvt. Ltd.
Proprietor of www.gosbi.in Having its office at D42 First Floor, IND Housing Colony, Najafgarh Road, Karampura, New Delhi, Delhi110015 Also at:
Go Banking Pvt. Ltd.
K184, Salt Lake, Sector5, Kolkata, West Bengal, India, Email: [email protected] ......Defendants no.1
2. RDB Boulevard Proprietor of www.onlinecsp.in Having its office at CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 1 of 12 8th floor, plot K1, Sector V, Block EP&GP, Salt Lake City Kolkata700091 Email: [email protected] .........Defendant no. 2
3. R.B.D. Foundation, 3rd Floor, Proprietor of www.apnacsp.ind.in havind its office at Arcadia Center, Premise No.31, Ambedkar Sarani, Kolkata45 .........Defendant no. 3
4. GoDaddy India Web Services Pvt. Lt 102, OSIA Friendship 4th Gaothan Lane Off J P Road, Opp. Ram Mandir, Andheri (w) Mumbai, Maharshtra 400058 .............Defendant no.4 (deleted vide order dated 18.05.2017)
5. WEBIQ Domains Solutions Pvt. Ltd.
102 OSIA Friendship 4th Gaothan Lane Off JP Road, Opp. Ram Mandir, Andheri (w) Mumbai, Maharastra400058 .........Defendant no. 5 Date of institution of the suit : 13.01.2016 Date of pronouncement of judgment: 02.08.2017 EXPARTE JUDGMENT
1. The present suit for permanent injunction restraining copying of data and identity, infringement of trademark, copyright, passing off, damages, rendition of account of profits, delivery up, etc. has been filed by the CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 2 of 12 plaintiff.
Plaintiff's version as per averments in the plaint : 2.1 Succinctly, the plaintiff is a company duly incorporated, organized and existing under the provision of Companies Act. The plaintiff in essence provides a low cost infrastructure powered by innovation and technology to enable instant, secure and convenient financial transactions through existing retail shops, telcom connectivity and banking infrastructure. The plaintiff has devised modality for providing branchless banking services to the most remote and unbanked population of the society. A multimodal (USSD, SMS, IVR Web and Mobile Application) approach to perform a transaction, the service provided by the plaintiff works across all phones and INTERNET browsers on computing devices.
2.2 Plaintiff has developed a reputation built upon providing high quality services to a wide range of customers. Services under the EKO Trademarks and Trade names have been widely promoted by the plaintiff in India and across the world and have been advertised in India for several years.
2.3 Plaintiff first adopted the trademark "EKO" as a trademark and trading style in the year 2007. The Trademark "EKO" is an invented mark and is capable of the highest degree of promotion. Since the plaintiff's trademark is an invented mark, it is inherently distinctive for the services of the plaintiff and thus, the plaintiff is entitled to the exclusive rights of the CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 3 of 12 trademark "EKO" to the exclusion of all the others. 2.4. Plaintiff has secured domain name registration for the domains www.eko.co.in and such diverse use further cements the association of the trademakr EKO with the business, products and services of the plaintiff. Plaintiff by such use, coupled with the promotional efforts and its leadership in its field, the trademark and trade name EKO has become inseparable from its products, services and business. Plaintiff has common law rights in the trademark EKO and any adoption or use of an identical or deceptively similar mark is deemed to be deliberate, dishonest and a calculated act to take undue advantage of the reputation and goodwill subsisting in the plaintiff trademark.
2.5. A considerable amount is spent by the plaintiff on advertising and promoting the services under the trademark EKO. The inventive nature of the trademark EKO and the insurmountable common law rights entitle the plaintiff to initiate passing off action against any subsequent user of the trademark EKO.
2.6. That the said trade mark is registered in class 25 vide application No. 1778089. Application no. 1618071 and plaintiff has now come out with another version of their registered trademark which adopted in 2012. 2.7. The defendant no. 1 is a private limited company having its registered office at D42 First Floor, IND housing Colony, Najafgarh road, Karampura, New Delhi, Delhi110015. The said defendant is the registrant and owner of the website www.gosbi.in and www.rbdf.ind.in. It is further CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 4 of 12 stated that though the registered office of the Company is in Delhi, as per the address provided in the website, the office of the Defendant no.1 is shown as 'Go Banking Pvt. Ltd. K184, Salt Lake, Sector5, Kolkata, West Bengal, India.
2.8. That the Defendant no.2 also operates a website under the domain www.onlinecsp.in and as per the information available, its address is at RBD Boulevard, 8th Floor, Plot K1, SectorV, Block EP & GP, Salt Lake City Kolkata 700091, India.
2.9. The defendant no.3 also operates the domain namely www.apnacsp.ind.in has its office, as per the information available on the website at R.B.D Foundation, 3rd Floor, Arcadia Center, Premise No.31, Ambedkar Sarani, Kolkata45.
2.10. Defendant no. 4 is an intermediary and is the registrar of the impugned website 1 and impugned website 3. The defendant no.5 is the Registrar of the impugned website 2.
2.11 That Plaintiff first became aware of the existence of this impugned websites while searching on the popular search engine www.google.com, it came to know that there are companies who are engaged in the business of appointing of Coustomer Services Points for mobile Banking Business. Further it is stated that not only the founders and members, even the awards and accolades received by the plaintiff were depicted as having been received by the defendant no. 1, Defendant no.2 and defendant no.3. Surprisingly, the name of the plaintiff has been deleted and instead the defeated no.1, CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 5 of 12 defendant no.2 and defendant no.3 has been substituted their respective names in such award and recognition.
2.12. That the said defendants make their impugned websites look more authentic and genuine has copied the photographs, data and logo from the plaintiff's website. The action undertaken by the defendant no.1 to 3 constitutes infringement of plaintiff's Intellectual Property rights. Said Defendants are projecting the website to be authentic by using information and pictures of the directors and the employees of the plaintiff without any authorization from the plaintiff.
2.13 That plaintiff issued a takedown notice under Sec. 79(2) of IT Act 2000 read with Rule 3(4) of the IT Rule, 2011 to defendant no.4 requesting to block the impugned websites and prohibit the defendant no. 1 to 3 from further using the domain name. Further defendant no. 4 and 5 failed to take any corrective action and failed to acknowledge the request of plaintiff.
3. Process issued to the all the defendants and defendants were duly served. On being served defendant no. 1 to 3 and 5 did not contest the suit and were proceeded exparte on 02.03.2017.
4. The plaintiff has led exparte evidence by way of an affidavit, reiterating the averments made in the plaint. In exparte evidence, AR of the plaintiff company Sh. Vijay Kumar stepped into the witness box and deposed vide affidavit of evidence exhibited as Ex.PW1/A reiterating the contents of the plaint.
4.2. For the sake of brevity and to avoid repetition the contents are not CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 6 of 12 reproduced. The AR of plaintiff relied upon the documentary evidence Ex.
PW1/1 to Ex. PW1/15 i.e.:
S.No Name of the document Dated Exhibites
1. Board Resolution 11.12.2015 Ex.PW1/1
2. Copy of the picture award and Ex.PW1/2
recognition
3. Copies of newspaper articles, websites Ex.PW1/3
online blogs etc
4. Copy of registration certificate of the Ex.PW1/4
trademark EKO
5. Journal notification of the trademark Ex.PW1/5
registry's website
6. Representation sheets alongwtih journal Ex.PW1/6
copy and fee receipt
7. Copy of the computer printouts from Ex.PW1/7
plaintiff's website
8. Copy of computer print out from the D1 Ex.PW1/8
website
9. Copy of computer print out from the D2 Ex.PW1/9
website
10. Copy of computer print out from the D3 Ex.PW1/10
website
11. Copy of the site whois.net showing Ex.PW1/11
registration details of D1
12 Copy of the site whois.net showing Ex.PW1/12
registration details of D2
13. Copy of the site whois.net showing Ex.PW1/13
registration details of D3
14 Copy of C & D notices Both notices Ex.PW1/14
dated and
CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 7 of 12
09.06.2015 Ex.PW1/14A.
15 Copy of complaint 15.10.2015 Ex.PW1/15
4.3 Heard. Perused the records meticulously. I am of the considered
view, plaintiff is entitled to a decree in his favour and against the defendant no. 1 to 3 and 5 (defendant no. 4 after amendment deleted from array of parties) for the reasons stated as under.
5. Perusal of the documents and Pleadings filed by the plaintiff transpires that plaintiff's trademark are all registered and valid as on the date of filing of the suit. The registration gives exclusive rights to the plaintiff to protect their rights in said marks and take infringements actions against any party in violation thereof. By virtue of long, extensive and continuous use of trademark, plaintiff's marks have become inseparable and synonymous with the services of the plaintiff.
6. As held by the Hon'ble High court of Delhi in "The Royal Bank of Scotland Group PLC Vs. Sharekhan Limited, 216(2015) DLT 197", quoted with approval in the case relied upon by the plaintiff:
'In order to establish infringement, the main ingredients of Section 29 of the Act are that the plaintiff's mark must be registered under the Act; the defendant's mark is identical with or deceptively similar to the registered trade mark; and the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 8 of 12 rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration show the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court find that the defendant's mark is closely, visually phonetically similar, even then no further proof is necessary.'
7. In the present case, comparison of the marks/ contents as detailed in para 8 of the plaint reflects the similarity between the impugned marks of defendants and the marks of the plaintiff; defendant's marks are structurally, visually and phonetically similar to the plaintiff's marks. Defendants have inverbatim copied the entire content and concept of the plaintiff.
3.10 Customers base of the products of both the parties are same. The representation of the marks by the defendant tends to cause confusion in the minds of the general public as well as to the customers. If the defendant is permitted to use the impugned mark which are deceptively similar and confusingly to that of the plaintiff's company, it will not only cause wrongful loss to the plaintiff company, but it will also cause grave prejudice and harm to public. Not to mention about loss to the goodwill of the plaintiff.
CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 9 of 12 3.11. Be that as it may be, defendant no. 1 to 3 &5 are exparte. Nothing has come on record to disbelieve the case of the plaintiff or to doubt the authenticity and veracity of the document filed on record. The defendants did not come forward to disprove the case of plaintiff his stand. Consequently plaintiff is entitled to a decree for injunction in his favour and against the defendant.
4. Damages 4.1 In the present suit plaintiff is also claiming rendition of account by the defendant and damages in terms of prayer clause 'g' &'h' of the plaint. 4.2. A reference to the decision of Hon'ble High Court of Delhi titled as " The Heels V. Mr. V. K. Abrol and Anr. , CS (OS) No. 1385 of 2005 decided on 29.03.2006" would be profitable, wherein the Hon'ble court has held:
"This court has taken a view that where a defendant deliberately stays away from the proceedings with the result that on enquiry into the accounts of the defendant for determination of damages cannot take place, the plaintiff cannot be deprived of the claim for damages as that would amount to a premium on the conduct of such defendant. The result would be that parties who appear before the court and contest the matter would be liable to damages while the parties who choose to stay away from the court after having infringed the right of the plaintiff, would go scotfree. This position cannot be acceptable.
CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 10 of 12 No doubt it not possible to give an exact figure of damages on the basis of actual loss, but certain token amounts on the basis of the sales of the plaintiff can certainly be made. The plaintiff is unnecessarily dragged into litigation and the defendants must bear consequences thereof. In fact in such a case both compensatory and punitive damages ought to be granted apart from the costs incurred by the plaintiff ono such litigation. In view of the given sales figure of the plaintiff. I consider it appropriates to grant a decree of damages in favour of the plaintiff and against the defendants for a sum of Rs. 3 lakh apart from costs of the suit. ' 4.3 In view of my finding that the plaintiff is entitled to the relief of permanent injunction, also taking in to consideration the proposition of law stated above I am of the view plaintiff is entitled to punitive damages to the tune of Rs. 2 lac rupees in his favour and against the defendant no.1 to 3 and
5. Relief.
In view of my above discussion, the present suit is decreed in favour of the plaintiff and against the defendant no. 1 to 3 & 5(defendant no.4 ) in terms of the para 36 prayer clauses (a) to (f) of the plaint with punitive damages for a sum of Rs. 2 lacs . The defendants 1 to 3 and 5 shall be jointly and severally liable to pay the damages.
The suit stands disposed off as decreed qua D1,2&5. Cost of the suit is awarded in favour of the plaintiff and against D 1,2&5.
CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 11 of 12 Decree sheet be drawn accordingly.
File be consigned to record room.
Announced in the open Court (Anil Antil)
Today on 30.08.2016 ADJ05, South East, District(SE)
Saket Court, New Delhi
CS 1469/16 EKO India Financial Sercices (P) Ltd. Vs. RSS Infotech (P) Ltd & Ors. . Page no. 12 of 12