Delhi High Court - Orders
Serving Statutory Notice To D-275 To 277 ... vs Ashok Kumar And Ors on 9 August, 2024
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 946/2023, I.A. 26165/2023-Exempt plaintiff from
serving statutory notice to D-275 to 277
IMAGINE MARKETING LIMITED .....Plaintiff
Through: Mr. Arjun Krishnan, Mr. Ankur
Singh and Mr. Abhijeet Singh,
Advocates
versus
ASHOK KUMAR AND ORS. .....Defendants
Through: Mr. Mrinal Ojha, Mr. Debarshi
Dutta and Mr. Arjun Mookerjee,
Advocates for D-234.
Mr. Shivam Rawat, Mr.
Mohanakrishna L., Mr. Vivek
Krishnan and Mr. A. Singh,
Gautam, Advocates for D-241
CORAM:
HON'BLE MR. JUSTICE SAURABH BANERJEE
ORDER
% 09.08.2024
I.A. 11219/2024-Addl.doc.
1. By virtue of the present application, the plaintiff seeks to bring on record the following documents of the defendants: -
"Defendant No.7 <www.boatshoppy.in>; Defendant No.11 <www.boatsoundmusic.com>; Defendant No.13 <www.boatsounds.in>; Defendant No.30 <www.lifebassmusicboat.com>; Defendant No.35 <www.boatshope.in>; Defendant No.61 <www.boatmusic.in>; Defendant No.80 <www.boatkart77.myshopify.com>; Defendant No.95 <www.boatmusic1199.myshopify.com>; Defendant No.96 CS(COMM) 946/2023 Page 1 of 9 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 14/08/2024 at 23:02:45 <www.boatmusic9191.myshopify.com>; Defendant No.146 <www.soundmusic.in>: Defendant No.152 <www.soundlife.store>; Defendant No.153 <www.beat- lifestyle.com>; Defendant No.162 <www.chikarapro.in>;
Defendant No.163 <www.metrofashions.co.in>; Defendant
No.167 <www.thestreetsaga.com>; Defendant No.170
<www.musicalwave.shop>; Defendant No.178
<www.sayonn.shop>; Defendant No.185 <www.one-
musicbox.myshopify.com>; Defendant No.229 <www.air-
roc.myshopify.com>; Defendant No.2 <https://boat-
nirvana.myshopify.com/>; Defendant No.43 <www.boat-app- tau.vercel.app>; Defendant No.145 <www.justjaldi.com>; Defendant No.173 <https://grozzbuy.com/product/boat-l21-t2- m10-tws-wireless-high-bass-bluetooth-headset-best-quality- bluetooth-headset-black-true-wireless/>; Defendant No.174 <https://www.queenbabys.in/products/boat-airdopes-443-or-
wireless-earbuds>; Defendant No.232 <https://grossper.com/?s=boat&product_cat=&post_type=product >".
2. Considering the nature of the case and also since the plaintiff has been able to ascertain about the particulars of already impleaded defendants at this stage only, let the documents be taken on record.
3. Accordingly, the present application is allowed and disposed of. CS(COMM) 946/2023
4. Learned counsel appearing for the plaintiff seeks and is granted four CS(COMM) 946/2023 Page 2 of 9 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 14/08/2024 at 23:02:45 weeks for filing replication to the written statement of defendant no.241.
5. Renotify before the learned Joint Registrar for completion of service of defendant nos. 235 to 240 and defendant nos. 242 to 244 on 15.10.2024.
I.A. 26163/2023-Stay
6. By virtue of the present application the plaintiff is seeking the following reliefs:
a. an order of injunction restraining the Defendant Nos. 1 -272 and their employees, servants, agents, representatives, assignees, through themselves and through assigns and representatives and all other servants, agents, acting for and on their behalf from using Plaintiffs' Trade Mark "boAt" and its other formative marks or activities and services bearing the Plaintiff's registered Trade Marks or identical or deceptively similar to such Trade Marks, as described in the application, in any manner or form; b. an order of injunction restraining the Defendant Nos. 1 - 272 and their employees, servants, agents, representatives, assignees, through themselves and through assigns and representatives and all other servants, agents, acting for and on their behalf from taking unfair advantage of and/or cause detriment to the distinctive character and reputation of the Plaintiff's Trade Mark "boAt" and from doing any other thing as is likely to cause confusion or deception leading to passing off of the Defendants No. 1-272'products I services I activities as those of the Plaintiff; c. an order of injunction restraining the Defendant Nos. 1 - 272 and their employees, servants, agents, representatives, assignees, through themselves and through assigns and representatives and all other servants, agents, acting for and on their behalf from misrepresenting and impersonating as the Plaintiff and/or its authorized agents, technicians, affiliates, agents, employees, etc. in any manner or form, whatsoever;
d. an order of injunction restraining the Defendant Nos. 1 - 272 and their employees, servants, agents, representatives, assignees, through themselves and through assigns and representatives and all other servants, agents, acting for and on their behalf from accessing or operating their respective domain names/websites as set out in paragraph 26 in the present suit, for any purpose whatsoever;
e. an order of injunction directing the Defendant Nos. 265 to 272 and their employees, servants, agents, representatives, assignees, CS(COMM) 946/2023 Page 3 of 9 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 14/08/2024 at 23:02:46 through themselves and through assigns and representatives and all other servants, agents, acting for and on their behalf from registering or allowing registration of any domain names/websites which are identical or deceptively similar to the Plaintiffs Trade Marks and its other formative marks or activities and services bearing the Plaintiffs registered Trade Marks, as described in the application, in any manner or form;
f. an order in the nature of interim directions to Defendant Nos. 265 to 272 to block/delete and not to offer for registration the domain names/websites as set out in paragraph 26 in the present application;
g. an order in the nature of interim directions to Defendant Nos. 265 to 272 to reveal the details of the Registrants arrayed as Defendant No. 1 to 264, including payment details of purchase and sale details, along with complete Shopper ID information, for the domain names/websites as set out in paragraph 26 in the present application;"
7. Learned counsel for plaintiff states that as of now, he is pressing for relief only against Defendant No.7 <www.boatshoppy.in>; Defendant No.11 <www.boatsoundmusic.com>; Defendant No.13 <www.boatsounds.in>; Defendant No.30 <www.lifebassmusicboat.com>; Defendant No.35 <www.boatshope.in>; Defendant No.61 <www.boatmusic.in>; Defendant No.80 <www.boatkart77.myshopify.com>; Defendant No.95 <www.boatmusic1199.myshopify.com>; Defendant No.96 <www.boatmusic9191.myshopify.com>; Defendant No.146 <www.soundmusic.in>: Defendant No.152 <www.soundlife.store>; Defendant No.153 <www.beat- lifestyle.com>; Defendant No.162 <www.chikarapro.in>;
Defendant No.163 <www.metrofashions.co.in>; Defendant
No.167 <www.thestreetsaga.com>; Defendant No.170
<www.musicalwave.shop>; Defendant No.178
CS(COMM) 946/2023 Page 4 of 9
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 14/08/2024 at 23:02:47 <www.sayonn.shop>; Defendant No.185 <www.one-
musicbox.myshopify.com>; Defendant No.229 <www.air- roc.myshopify.com>; Defendant No.2 <https://boat- nirvana.myshopify.com/>; Defendant No.43 <www.boat-app- tau.vercel.app>; Defendant No.145 <www.justjaldi.com>; Defendant No.173 <https://grozzbuy.com/product/boat-l21-t2- m10-tws-wireless-high-bass-bluetooth-headset-best-quality- bluetooth-headset-black-true-wireless/>; Defendant No.174 <https://www.queenbabys.in/products/boat-airdopes-443-or-
wireless-earbuds>; Defendant No.232 <https://grossper.com/?s=boat&product_cat=&post_type=product >" as per amended memo of parties.
8. Learned counsel for the plaintiff is a company engaged in the business of importing, trading, manufacturing, selling, distribution, design and development of consumer electronic and lifestyle products such as wired/wireless earphones, Bluetooth speakers, power-banks, smart watches, trimmers, under the brand name of "boat". The plaintiff is the proprietor of "boAt" trade marks registered under Classes 9, 14 and 35. The plaintiff therefore has the exclusive rights of use of the said trade marks. The annual turnover and expenditure on marketing/advertising in the past three years of the plaintiff is as follows:
CS(COMM) 946/2023 Page 5 of 9This 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 14/08/2024 at 23:02:47
9. As per learned counsel for the plaintiff, the plaintiff through its domain name/ website i.e., www.boat-lifestyle.com, offers a wide range of consumer electronics and services. Plaintiff exclusively offers its products and services under the brand name and trade mark "boAt" for sale only through its authorized and recognised website, and authorized e-commerce platforms such as Amazon, Flipkart, Nykaa, Myntra, Blinkit, Tata Cliq, Snapdeal, First Cry, Shop Disney, Cred, Snapmint, etc. As per the counsel for the plaintiff, the plaintiff has not authorized any other website/domain name/portal for the said purpose, and every other channel of distribution of its products is unauthorised and illegal.
10. This Court has heard the submissions of the learned counsel for the plaintiff and perused the documents on record.
11. The plaintiff is principally aggrieved by the following illegal actions on the part of the defendants: (i) infringement of plaintiff's trade mark "boAt" by registration and use of deceptively similar domain names per se; and (ii) infringement of plaintiff's trade marks by fake and unauthorised website which either sell spurious/ counterfeit products or are simply scam/ fraudulent websites where fake product listings are made without any actual underlying product.
12. The defendants' fake websites are live for a brief period, and CS(COMM) 946/2023 Page 6 of 9 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 14/08/2024 at 23:02:47 defendants employ tools such as "Google AdSense" to promote the website on search engines. URLs and domain names are deceptively similar to the plaintiff's brand and therefore, customers visit these websites while assuming them to be genuine and authorised e-commerce platforms. Products are listed at heavily discounted prices to lure the customer in making the purchase, and generally, only pre-payment options through credit/ debit cards, UPI, etc. are available to complete the purchase, instead of cash on delivery. Customers are thus trapped in paying the entire price before receiving the goods or verifying the genuineness of the product, and they end up with fake counterfeit products or with no product at all. This causes an obvious loss to the victim as well as loss of revenue and irreparable harm to the goodwill of the plaintiff.
13. In light of the above, this Court is of the view that the plaintiff has made out a prima facie case for grant of an injunction. If an injunction is not granted at this stage, irreparable harm would be caused to the plaintiff the balance of convenience also lies in favour of the plaintiff.
14. Accordingly, Defendant No.7 <www.boatshoppy.in>; Defendant No.11 <www.boatsoundmusic.com>; Defendant No.13 <www.boatsounds.in>; Defendant No.30 <www.lifebassmusicboat.com>; Defendant No.35 <www.boatshope.in>; Defendant No.61 <www.boatmusic.in>; Defendant No.80 <www.boatkart77.myshopify.com>; Defendant No.95 <www.boatmusic1199.myshopify.com>; Defendant No.96 <www.boatmusic9191.myshopify.com>; Defendant No.146 <www.soundmusic.in>; Defendant No.152 CS(COMM) 946/2023 Page 7 of 9 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 14/08/2024 at 23:02:48 <www.soundlife.store>; Defendant No.153 <www.beat- lifestyle.com>; Defendant No.162 <www.chikarapro.in>;
Defendant No.163 <www.metrofashions.co.in>; Defendant
No.167 <www.thestreetsaga.com>; Defendant No.170
<www.musicalwave.shop>; Defendant No.178
<www.sayonn.shop>; Defendant No.185 <www.one-
musicbox.myshopify.com>; Defendant No.229 <www.air-
roc.myshopify.com>; Defendant No.2 <https://boat-
nirvana.myshopify.com/>; Defendant No.43 <www.boat-app- tau.vercel.app>; Defendant No.145 <www.justjaldi.com>; Defendant No.173 <https://grozzbuy.com/product/boat-l21-t2- m10-tws-wireless-high-bass-bluetooth-headset-best-quality- bluetooth-headset-black-true-wireless/>; Defendant No.174 <https://www.queenbabys.in/products/boat-airdopes-443-or-
wireless-earbuds>; Defendant No.232 <https://grossper.com/?s=boat&product_cat=&post_type=product >" (as per amended memo of parties) are restrained in terms of prayers
(a)-(d) of the present application, and are restricted from operating any domain names/websites which use identical or deceptively similar marks to that of the plaintiff's registered marks and its other formative marks or goods/ services, as described in the application, in any manner or form.
15. Additionally, the defendant Nos.233-240 (DNRs) are directed to lock and suspend the domain names specified in paragraph 7 of the present order, which have been registered through them, within ten days of receipt of this order. Further, for the respective domain names registered CS(COMM) 946/2023 Page 8 of 9 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 14/08/2024 at 23:02:48 through them, they shall also furnish the details of the registrants including KYC details available with them. The same be filed before this Court, in a sealed cover, within two weeks from today.
16. The provisions of Order XXXIX Rule 3 of CPC be complied within a period of four weeks.
17. List before the Court on 10.12.2024.
SAURABH BANERJEE, J AUGUST 9, 2024/akr CS(COMM) 946/2023 Page 9 of 9 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 14/08/2024 at 23:02:48