Delhi High Court - Orders
Havells India Ltd & Anr vs Ashok Kumar John Doe & Ors on 26 July, 2024
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 613/2024 & I.A. Nos. 34464/2024, 34465/2024,
34466/2024, 34467/2024, 34468/2024, 34469/2024 & 34470/2024
HAVELLS INDIA LTD & ANR. .....Plaintiffs
Through: Mr. Sudeep Chatterjee with
Mr. Kunal Vats, Mr. Rohan Swarup,
Ms. Tanya Arora and Mr. Sanyam
Suri, Advocates.
(M): 8930707070
Email: [email protected]
versus
ASHOK KUMAR JOHN DOE & ORS. .....Defendants
Through: Mr. Aditya Gupta with Mr. Sauhard,
Advocates for defendant no. 5.
Mr. Rakesh Kumar, CGSC with
Mr. Vinod Tiwari, GP and Mr. Sunil,
Advocates for defendant no. 10 and
11.
(M): 9811549455
7042632204
Mr. Prashant Manchanda, ASC,
GNCTD with Mr. Mayank, Advocate
for defendant no. 14.
Ms. Nisha with Ms. Divya Sejwal and
Ms. Vandana Singh, Advocates.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 26.07.2024 I.A. No. 34465/2024 (Exemption from filing certified copies)
1. The present is an application under Section 151 of the Code of Civil CS(COMM) 613/2024 Page 1 of 22 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 30/07/2024 at 00:55:30 Procedure, 1908 ("CPC") seeking exemption from filing original/certified copies, documents in vernacular/clear copies and permission to file copies/dim documents without translated documents and documents without prescribed margin.
2. Exemption is granted, subject to all just exceptions.
3. Applicant shall file legible, clear, and original copies of the documents on which the plaintiff may seek to place reliance, within four weeks from today or before the next date of hearing, whichever is earlier.
4. Accordingly, the present application is disposed of. I.A. No. 34467/2024 (Application to file additional documents)
5. The present application has been filed on behalf of the plaintiffs under Order XI Rule 1(4) of the CPC, 1908 as amended by Commercial Courts Act, 2015, read with Section 151 CPC, seeking liberty to file additional documents at the appropriate stage.
6. 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, 2015 and the DHC (Original Side) Rules, 2018.
7. Accordingly, the present application is disposed of. I.A. No. 34468/2024 (Exemption from advance service to defendant no.
1)
8. The present is an application under Section 151 CPC seeking exemption from service to defendant no. 1.
9. Since there is an urgency in the matter, and the same is being heard today, plaintiffs are exempted from serving advance notice on the defendant no. 1.
10. For the reasons stated in the application, the same is allowed and CS(COMM) 613/2024 Page 2 of 22 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 30/07/2024 at 00:55:30 disposed of.
I.A. No. 34469/2024 (seeking permission to file electronic documents/evidence in form of CD(s))
11. The present is an application under Section 151 CPC seeking permission to file electronic documents/evidence in form of CD(s) containing videos.
12. Rule 24 of Chapter XI of the Delhi High Court (Original Side) Rules, 2018, makes it clear that electronic records can be received in CD/DVD/medium encrypted with a hash value.
13. Accordingly, Registry may receive electronic record on CD- ROM/DVD, so long as it is encrypted with a hash value or in any other non- editable format. The video recording contained in CD-ROM be placed in the electronic record of the present suit in a format which is non-editable, so that the same can be viewed by the Court during hearing.
14. The application is allowed and the plaintiff is granted liberty to file the CD(s) with the registry after supplying copies to the parties.
15. Application is disposed of accordingly.
I.A. No. 34470/2024 (Exemption from service to defendant nos. 10, 11 and 14)
16. The present is an application under Section 80(2) read with Section 151 CPC seeking exemption from service to defendant nos. 10, 11 and 14.
17. Learned counsels appearing for the defendant nos. 10, 11 and 14 have put in appearance.
18. As such, the present application is rendered infructuous, and accordingly is disposed of.
I.A. No. 34466/2024 (seeking exemption from undergoing Pre-
CS(COMM) 613/2024 Page 3 of 22This 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 30/07/2024 at 00:55:31 Institution Mediation)
19. The present is an application under Section 12A of the Commercial Courts Act, 2015 read with Section 151 of CPC for exemption from undergoing Pre-Institution Mediation.
20. Having regard to the facts of the present case and in the light of the judgment of Supreme Court in the case of Yamini Manohar versus T.K.D. Keerthi, 2023 SCC OnLine SC 1382, and Division Bench of this Court in Chandra Kishore Chaurasia Versus RA Perfumery Works Private Ltd., 2022 SCC OnLine Del 3529, exemption from undergoing Pre-Institution Mediation, is granted.
21. Accordingly, the application stands disposed of. CS(COMM) 613/2024
22. Let the plaint be registered as suit.
23. Issue summons.
24. Summons are accepted, by learned counsels appearing for defendant nos. 5, 10, 11 and 14.
25. Upon filing of the process fee, issue summons to the other defendants by all permissible modes. Summons shall state that the written statement be filed by the defendants within thirty days from the date of receipt of summons. Along with the written statement, the defendants shall also file affidavit of admission/denial of the plaintiffs‟ documents, without which, the written statement shall not be taken on record.
26. Liberty is given to the plaintiffs to file replication within thirty days from the date of receipt of the written statement. Further, along with the replication, if any, filed by the plaintiffs, an affidavit of admission/denial of documents of the defendants, be filed by the plaintiffs, without which, the CS(COMM) 613/2024 Page 4 of 22 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 30/07/2024 at 00:55:31 replication shall not be taken on record. If any of the parties wish to seek inspection of the documents, the same shall be sought and given within the timelines.
27. List before the Joint Registrar (Judicial) for marking of exhibits on 18th September, 2024.
28. List before the Court on 06th November, 2024.
I.A. No. 34464/2024 (Application under Order XXXIX Rules 1 and 2 CPC)
29. The present suit has been filed for permanent injunction restraining infringement of trademark, infringement of copyright, passing off, dilution, rendition of accounts, act of unfair competition, misrepresentation, fraud, damages etc.
30. Learned counsel appearing for the plaintiffs submits that the plaintiffs had filed the present suit being aggrieved by the fraudulent, fake and illegal investment schemes being floated by unknown persons/defendant no. 1 on the internet, under the registered and well-known trademark/trade name of the plaintiffs being "HAVELLS", and their variants.
31. It is submitted that the plaintiffs became aware of the about the same only on or around 03rd July, 2024, when plaintiff no.1 received a complaint from its customer in respect of an amount deposited by him in purported money making scheme of HAVELLS. The plaintiffs, while being surprised and shocked by such news, duly clarified that they have no association whatsoever with such schemes.
CS(COMM) 613/2024 Page 5 of 22This 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 30/07/2024 at 00:55:31
32. It is submitted that in order to gather more information in this regard, the plaintiffs conducted a thorough online search and were shocked to learn that certain unknown persons are using the name of the plaintiffs to lure the members of public, to invest a substantial sum of monies in the above illegal investment scheme.
33. It is submitted that by impersonating the plaintiffs in running such fraudulent, fake and illegal investment schemes, these unknown persons are inviting monetary investments from general public, with a promise to provide an assured positive return within a specified period of time, nearing to almost double the invested amount.
34. Thus, it is submitted that having regard to the enormous goodwill and reputation earned by the plaintiffs, especially on account of the fact that the plaintiffs, through their predecessor, have been in the business of electrical goods since the year 1942, the members of public believe that these illegal investments schemes are being directly floated and managed by the plaintiffs.
35. Thus, the members of public have been investing substantial amount of their hard earned money, with an expectation to get higher returns. However, the said public is falling victim to the scams of these fraudsters and the money they have invested is only unlawfully enriching these unknown persons, with no prospective of any return at all, nor even refund of the money deposited.
36. It is submitted that these fraudsters are soliciting payment of money from the public in the wake of investments and before the maturity date. Further, the defendant no. 1, after making the website/mobile application dysfunctional, may initiate the same illegal scheme through a different CS(COMM) 613/2024 Page 6 of 22 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 30/07/2024 at 00:55:31 domain name/website/mobile application thereby, making themselves invisible, to be caught.
37. It is submitted that the defendant no. 1 on 25 th June, 2024 had obtained registration for an infringing domain name being www.havells- share.com (https://m.havells-share.com), whereby, the said fraudulent investment scheme has been made accessible to the users/investors. The WHOIS data of the offending domain name's registrant details shows "Registrant State/Province as HAVELLS". Further, the website/domain name can also be used to download a mobile application namely, „Havells‟/ „Havells Earning App‟ for the customers to manage and control their purported investments.
38. It is submitted that perusal of the infringing website as also the mobile application, makes it evident that the fraudsters are encashing upon the goodwill and reputation of the plaintiffs, by prominently adopting and displaying the trademark, trade name and logo of the plaintiffs "HAVELLS", .
39. Attention of this Court has been drawn to the document to show the screenshots of the infringing website and various mobile applications/websites being used by defendant no. 1 to dupe the public, the same are reproduced as below:-
CS(COMM) 613/2024 Page 7 of 22This 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 30/07/2024 at 00:55:31 CS(COMM) 613/2024 Page 8 of 22 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 30/07/2024 at 00:55:31 CS(COMM) 613/2024 Page 9 of 22 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 30/07/2024 at 00:55:32
40. It is submitted that in addition to the said websites and mobile applications, defendant no. 1 is also actively and openly promoting the said fake and illegal investment schemes through multiple social media platforms such as YouTube, which is defendant no. 5, Telegram-defendant no. 6, WhatsApp-defendant no. 7, Facebook-defendant no. 8. These fraudsters are creating various groups/channels on these platforms for dissemination of false and incorrect information in respect of these scams, to mislead and lure the public to invest their hard earned money in such scams.
41. It is submitted that defendant no. 1 in order to give an impression to CS(COMM) 613/2024 Page 10 of 22 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 30/07/2024 at 00:55:32 the public that the groups/channels on social media platforms are genuine and owned by the plaintiffs, have in a prominent manner, also adopted the name and logo of the plaintiffs. The screenshots of the activity of defendant no. 1 on Telegram, Facebook and other websites, are reproduced as under:-
CS(COMM) 613/2024 Page 11 of 22This 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 30/07/2024 at 00:55:32 CS(COMM) 613/2024 Page 12 of 22 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 30/07/2024 at 00:55:32 CS(COMM) 613/2024 Page 13 of 22 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 30/07/2024 at 00:55:32 CS(COMM) 613/2024 Page 14 of 22 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 30/07/2024 at 00:55:32 CS(COMM) 613/2024 Page 15 of 22 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 30/07/2024 at 00:55:32
42. Attention of this Court has been drawn to the screenshots of the infringing videos, as occurring on YouTube.
43. It is submitted that these imposters in order to attract more eye-balls and lure different sections of the society, are also engaging the services of various social media influencers and marketers, with significant followers/subscribers, for promotion of their illegal investment schemes.
44. It is also submitted that the plaintiff contacted one of the content creators who informed that one person with mobile number +91- 8698896664 approached him for uploading the video content in respect of the illegal schemes and the impugned website/mobile Application. It is CS(COMM) 613/2024 Page 16 of 22 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 30/07/2024 at 00:55:32 submitted that as a result of large scale advertisements and promotion of the subject matter of fraudulent and illegal investment schemes by defendant no.1, through the platforms of defendant nos. 5-8, various third parties, including content creators, have been uploading multiple videos/posts on YouTube and X, whereby, the viewers are being tutored with respect to the use and working of the said investment schemes.
45. It is submitted that the trademark „HAVELLS‟ is invented/coined word which in fact, has also been declared as a well-known mark. Therefore, the mark of the plaintiffs is entitled to the highest degree of protection. The trade mark/name „HAVELLS‟ is a unique trademark, which has been coined from the first five letters of the first name of the plaintiffs predecessor Late Sh. Haveli Ram Gandhi, in the year 1942 and has been extensively used as a trade mark ever since.
46. The various websites used by the defendant no. 1 are anonymous in nature i.e., it is virtually impossible for the plaintiffs to locate the owners of such websites or contact details of such owners, as the information available in the public domain is either incomplete, incorrect and/or protected behind a veil of secrecy. Many of such websites hide behind domain privacy services offered by various organizations. Thus, it is submitted that unless the domain registrars and domain privacy services of the respective websites are directed to disclose the details of the owners of said websites, impleaded as defendant no.1, it is impossible to get the address, location and contact details of the owners of the impugned websites.
47. It is submitted that since the plaintiffs are unable to police each and every act of the infringers/fraudsters, therefore, the present suit has been filed against the impugned website and mobile application, whereby, illegal CS(COMM) 613/2024 Page 17 of 22 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 30/07/2024 at 00:55:32 investment schemes, are being floated by defendant no.1.
48. It is submitted that the acts of defendants in illegally and in an unauthorized manner, adopting the plaintiffs‟ trademark and incorporating the same as part of their infringing website and mobile application for promoting their illegal investment schemes, is blatantly a dishonest act of passing off. The public at large being extremely familiar with the mark of the plaintiffs „HAVELLS‟ is bound to be confused and deceived into believing that the illegal investment schemes are being floated by the plaintiffs. Thus, it is submitted that the purpose of these scheme is to cheat the general public and extract their hard earned money. Therefore, the acts of the defendant no.1 are causing/likely to cause irreparable damage to the reputation of the plaintiffs and the negative repercussions of the same could be enormous.
49. Thus, in view of the above, considering the submissions made before this Court, the plaintiffs have established a prima facie case in their favour. The balance of convenience also lies in their favour and against defendant no. 1, in as much as the defendant no. 1 has blatantly copied the name and trademark of the plaintiffs, with an ulterior motive to dupe the members of the general public to invest their hard earned money in fake, fraudulent and illegal investment schemes.
50. Further, considering the submissions made before this Court and perusing the documents on record, this Court is of the view that grave and irreparable injury will be caused to the plaintiffs, as the action of the defendant no. 1, undoubtedly would lead the general public to believe that the illegal investment schemes are controlled by the plaintiffs
51. Considering the aforesaid, the following directions are passed:-
CS(COMM) 613/2024 Page 18 of 22This 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 30/07/2024 at 00:55:32 47.1 Defendant nos. 2 to 4, their directors, partners, proprietors, officers, affiliates, servants, employees, and/or anyone acting on their behalf, are directed to provide complete disclosure (identification, name, e- mail, address etc., of person/entity) in respect of domain name/account www.havells-share.com and block/suspend access to the said domain names/account/website.
47.2 Defendant no.1, its owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent, acting for and on its behalf, or anyone claiming through, by or under it, are restrained, from using, in any manner, directly or indirectly, the plaintiffs‟ registered trademarks i.e., "HAVELLS", .
and/or any other identical/deceptively similar mark, either as domain names/website/mobile applications/trademark/logo or otherwise in relation to any illegal investment/promotional/marketing scheme, so as to result in infringement/passing off of the plaintiffs‟ registered trademarks and copyrights and intellectual property rights.
47.3 Defendant no. 1 (and such other entities/individuals which are discovered during the course of the proceedings to have been engaging in infringing the plaintiffs intellectual property rights) are directed to immediately delete all the groups/posts, uploaded on the platforms of defendant nos. 5-9, wherein information is being disseminated by it or/and by others acting in concert with it, about the illegal investment schemes and impugned website/mobile application using the impugned mark/name logo/ CS(COMM) 613/2024 Page 19 of 22 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 30/07/2024 at 00:55:32 device HAVELLS, of the plaintiffs.
47.4 Defendant nos. 6 and 7, are directed to provide complete disclosure of account information (Identification, Name, Phone Number, e-mail, address etc.) of person/entity who/which are the creator/administrator and/or are part of the impugned groups/chats/channels, as detailed in the list of impugned URLs, reproduced in paragraph 41 of the present application. 47.5 Defendant nos. 6 and 7 are directed to immediately take down/remove from their platforms all instances of the groups, posts, videos, links, etc. posted by the defendant no. 1 and the other third parties, including, the content creators containing any information about the impugned website/ mobile application using the impugned mark/name logo/device HAVELLS, of the plaintiffs, as detailed in the list of impugned URLs, reproduced in paragraph 41 of the present application.
47.6 Defendant nos. 8 and 9, are directed to immediately take down/ remove from their platforms all instances of the groups, posts, videos, links, etc. posted by the defendant no. 1 and the other third parties, including, the content creators containing any information about the impugned website/ mobile application using the impugned mark/ name logo/device HAVELLS, CS(COMM) 613/2024 Page 20 of 22 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 30/07/2024 at 00:55:32 of the plaintiffs, as detailed in the list of impugned URLs, reproduced in paragraph 41 of the present application. Further, directions are issued to defendant no. 5 to inform the uploaders of the various YouTube channels, the details of which are provided in para 41 of the present application, to take down/remove all the infringing videos/links which are provided in para 41 of the application within 48 hours from 27th July, 2024. In case, the said videos, links are not taken down/removed by the respective uploaders, then, defendant no. 5 shall take appropriate steps in that regard. In case, the said posts/videos/links are not taken down/removed by the respective uploaders, the same shall be removed by the defendant no. 5, immediatly after intimation from the plaintiffs in this regard.
47.7 Defendant nos. 10 and 11 are directed to issue a notification calling upon the various internet and telecom service providers registered under it, to block access to the website www.havells-share.com (https://m.havells- share.com), or such other websites that may subsequently be notified by the plaintiffs, to be infringing.
47.8 Defendant no. 12, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent, acting for and, on their behalf, or anyone claiming through, by or under it, is directed to provide complete disclosure/block/freeze of the KYC details of the accounts/UPI-ID-maksund668@sbi or any other account number/UPI ID, that may be subsequently provided by the plaintiffs and/or the defendants, being used by the defendant no. 1 for receiving money in CS(COMM) 613/2024 Page 21 of 22 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 30/07/2024 at 00:55:32 respect to illegal investment schemes.
47.9 Defendant No.13 and their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent, acting for and, on their behalf, or anyone claiming through, by or under it, is directed to provide complete disclosure/immediately block, the KYC details of the phone number +91-8698896664 used by the defendant no. 1 imposters or any other number provided by the plaintiffs and/or the defendants being used by the defendant no. 1, for their activities infringing the plaintiffs‟ exclusive rights.
52. Issue notice to the defendants by all permissible modes, upon filing of process fees, returnable on the next date of hearing.
53. Reply, if any, be filed within a period of four weeks from the date of service.
54. Rejoinder thereto, if any, be filed within a period of two weeks, thereafter.
55. Compliance of Order XXXIX Rule 3 CPC, be done, within a period of 10 days, from today.
56. List on 06th November, 2024.
MINI PUSHKARNA, J JULY 26, 2024 c CS(COMM) 613/2024 Page 22 of 22 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 30/07/2024 at 00:55:32