Delhi High Court - Orders
Baxter International Inc vs John Doe & Ors on 22 March, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 259/2024
BAXTER INTERNATIONAL INC ..... Plaintiff
Through: Mr. Anirudh Bakhru, Ms. Anuradha
Salhotra, Mr. Sumit Wadhwa,
Mr. Akshay Bhardwaj and
Mr. Umang Tyagi, Advocates.
versus
JOHN DOE & ORS. ..... Defendants
Through: Ms. Anushka Sharda, Mr. Madhav
Khosla and Ms. Moha Paranjpe,
Advocates for D-3.
Mr. Neel Mason, Mr. Vihan Dang,
Mr. Ujjwal Bhargava, Mr. Aditya
Mathur and Ms. Pragya Jain,
Advocates for D-2.
Ms. Nidhi Raman, CGSC with
Mr. Zubin Singh, Advocate for D-6,
7.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 22.03.2024 I.A. 6926/2024 (for exemption from advance service to D-1)
1. The Plaintiff alleges that Defendant No. 1 is perpetrating fraud on the general public by creating a false association with the Plaintiff, resulting in grave financial losses to the public. Considering the nature of controversy involved in the present suit as well as the peculiar facts and circumstances of CS(COMM) 259/2024 Page 1 of 16 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 25/03/2024 at 22:06:27 the case, exemption from effecting advance service on Defendant No. 1 is allowed.
2. Application is disposed of.
I.A. 6925/2024 (for exemption from filing original documents), I.A. 6927/2024 (for exemption from filing documents with margin of 4 cms on left side of documents and exemption from filing the typed copies of dim annexures) and I.A. 6928/2024 (for exemption from filing translated copies of the documents not in English language)
3. Exemption is granted, subject to all just exceptions.
4. The Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
5. The applications are disposed of.
I.A. 6923/2024 (seeking leave to file additional documents)
6. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
7. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
8. Accordingly, the application stands disposed of.
I.A. 6924/2024 (for exemption from pre-institution mediation and settlement)
9. As the present suit contemplates urgent interim relief, in light of the judgment of the Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.
10. Disposed of.
1 2023 SCC OnLine SC 1382.
CS(COMM) 259/2024 Page 2 of 16This 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 25/03/2024 at 22:06:27 I.A. 6929/2024 (seeking extension for filing requisite court fee and one time process fee along with supporting affidavit)
11. Mr. Anirudh Bakhru, counsel for Plaintiff, states that court fee has been applied for, and undertakes to file the same as and when the court fee certificate and stamps are issued.
12. In view of the above, the time period to file the deficient court fee by the Plaintiff is enlarged by two weeks, commencing today.
I.A. 6922/2024 (for exemption from requiring the Plaintiff to issue notice to the D-6, 7 in terms of Section 80 of the Code of Civil Procedure, 1908)
13. Upon filing of process fee, issue notice to Defendants No. 6 and 7, by all permissible modes, returnable on the next date of hearing. Reply, if any, be filed within four weeks from the date of service. Rejoinder thereto, if any, be filed within two weeks thereafter.
14. Re-notify on 28th August, 2024.
CS(COMM) 259/2024
15. Let the plaint be registered as a suit.
16. Issue summons. Summons are accepted by counsel for Defendants mentioned in the appearance above. Written statement(s) on behalf of the said Defendants be filed within 30 days from today. Upon filing of process fee, issue summons to the remaining 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(s), the Defendants shall also file affidavit(s) of admission/ denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.
CS(COMM) 259/2024 Page 3 of 16This 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 25/03/2024 at 22:06:27
17. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/ denial of documents of the Defendants, be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
18. List before the Joint Registrar for marking of exhibits on 27th May, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
19. List before Court for framing of issues thereafter.
20. Counsel for Defendant No. 2, Google LLC, submits that the address of Defendant No. 2 mentioned in the memo of parties is incorrect. He states that he will furnish the correct address to the Plaintiff's counsel, who will then take necessary steps in this regard.
I.A. 6921/2024 (for grant of ad-interim injunction and interim injunction against D-1)
21. Mr. Bakhru sets up the case for grant of an ex-parte ad-interim injunction against fraudulent online investment and money-making schemes operated by Defendant No. 1 using the Plaintiff's "BAXTER"/ " " marks, as follows:
21.1. The Plaintiff, Baxter International INC, was founded in 1931 and is engaged in the business of offering a broad range of renal and hospital products under the marks "BAXTER"/ " " [hereinafter, "BAXTER marks"]. The Plaintiff also produces sterile medications, CS(COMM) 259/2024 Page 4 of 16 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 25/03/2024 at 22:06:27 encompassing a broad range of essential generic injectable medications in both frozen and liquid forms, which are widely used in the healthcare sector. The word mark "BAXTER" was adopted by the Plaintiff in 1931, while the distinctive logo " " was devised on 28th February, 1995. Plaintiff's breakthrough discoveries since 1940 have contributed to its recognition as a global healthcare force. Its products are sold in more than 100 countries, with global sales figures rounding up to USD 15,113 million in the year 2022.
21.2. In India, Plaintiff has obtained six trademark registrations for the BAXTER marks in classes 1,5,9,10 and 41, with the earliest one dating back to 15th November, 1949. Particulars of these registrations have been set out in paragraph No. 18 of the plaint.
21.3. Plaintiff has also established an online presence through social media profiles and its official websites "www.baxter.com", "www.baxter.in", and "www.baxter.com.sg", which are accessible worldwide, including India. The cinematograph films created by the Plaintiff and displayed on these websites are entitled to protection under the Copyright Act, 1957. 21.4. In March 2024, the Plaintiff came across a video uploaded on YouTube platform [Defendant No. 2] prominently featuring the BAXTER marks in the context of an investment and free money-making scheme. In the video, the channel owner - Mr. Lalit Dhakar, proclaims that BAXTER has launched an official mobile application to provide free money to the users. He states that users can claim free money on joining through the 'lifafa' option using a unique code. The application also offers various investment plans starting from Rs. 299/-, with a guaranteed daily income of CS(COMM) 259/2024 Page 5 of 16 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 25/03/2024 at 22:06:27 Rs. 15/- to 20/- and a return of the principal amount after 30 days. By referring friends, the users can earn a commission of 1% or 2%, based on their friends' investment, with additional benefits such as VIP status. Withdrawal of funds can be done through the 'My Bank' option with funds reflecting in the account within 48 hours, subject to 8% tax on the withdrawal amount. Few screenshots of the said video are reproduced below:
CS(COMM) 259/2024 Page 6 of 16This 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 25/03/2024 at 22:06:27 21.5. The Plaintiff thereafter attempted to ascertain the identity of the CS(COMM) 259/2024 Page 7 of 16 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 25/03/2024 at 22:06:28 registrant of the domain name "www.baxvip.com", which finds mention in the above-referred video [hereinafter, "impugned domain name"]. While the said domain name is registered with Defendant No. 5, the registrant's identity has been masked and is thus, not known to the Plaintiff. 21.6. Plaintiff's investigation revealed four other YouTube channels that were promoting the impugned domain name through videos circulated on Defendant No. 2-platform and other social media platforms, like Telegram FZ-LLC [Defendant No. 3] and WhatsApp LLC [Defendant No. 4]. All these videos are advertised with captions/ descriptions such as "Baxter Earning App Payment Proof / Real or fake/ Lifafa / Baxter Earning App Withdraw Problem Solve", "Baxter New Earning App / Baxter App Review / Baxter New long Term Earning App / Best Earning App" etc. 21.7. To ascertain the veracity of the claims of the afore-noted videos, on 06th March, 2024, the Plaintiff's Investigator invested an amount of Rs. 299/- in the scheme advertised on the impugned domain name. The guaranteed payments were however never credited to the Investigator's account. Such fraudulent activities are being carried out using the Plaintiff's BAXTER marks, without any authorization and thus, are damaging the Plaintiff's reputation among the consumers. The bad faith adoption and use by Defendant No. 1 of the BAXTER marks only serves to cause detriment to the distinctive character and repute of the Plaintiff's prior adopted, used, and registered BAXTER marks and constitutes infringement thereof.
22. The Court has considered the afore-noted contentions. Extracts from the impugned domain name are as follows:
CS(COMM) 259/2024 Page 8 of 16This 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 25/03/2024 at 22:06:28 CS(COMM) 259/2024 Page 9 of 16 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 25/03/2024 at 22:06:28 CS(COMM) 259/2024 Page 10 of 16 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 25/03/2024 at 22:06:28 CS(COMM) 259/2024 Page 11 of 16 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 25/03/2024 at 22:06:28
23. A comparison of the video content displayed on Plaintiff's original websites and the impugned domain name is as follows:
24. The afore-noted excerpts from the impugned domain name indicate that Defendant No. 1 is taking aid of the Plaintiffs' standing in the market to induce consumers into investing money into their scheme. Unwary consumers would be drawn to the impugned domain name on the promise for lucrative financial offers being provided by the Plaintiff's BAXTER CS(COMM) 259/2024 Page 12 of 16 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 25/03/2024 at 22:06:28 marks. Prima facie, Defendant No. 1 is attempting to create a sense of authenticity and association with the Plaintiff, when none exists, amounting to infringement and passing of the BAXTER marks. The comparison between the conflicting websites also demonstrates that the impugned domain name replicates the cinematograph films showcased on the Plaintiff's official websites, thereby infringing upon the Plaintiff's copyrighted works in the said films.
25. In view of above, the Court is satisfied that the Plaintiff has established a prima facie case in its favour and irreparable harm would be caused to it if an ad-interim ex-parte injunction is not issued against Defendant No. 1. Balance of convenience also lies in favour of the Plaintiff, and against Defendant No. 1.
26. Accordingly, the following directions are issued:
26.1. Till the next date of hearing, Defendant No. 1, and all persons acting on its behalf, are restrained from using the Plaintiff's trademarks "BAXTER"/ " " either by itself, or in conjunction with any other mark, and/or their variations, as a part of its domain names, websites, mobile applications, social media handle names/ profiles credentials/ description, promotional/ business activities on digital or print media, bank accounts and/or any business papers or in any manner so as to amount to infringement or passing off of the Plaintiff's registered BAXTER marks. 26.2. Till the next date of hearing, Defendant No. 1, and all persons acting on its behalf, are restrained from communicating to the public the cinematograph works of the Plaintiff as its own, and from using a layout/ user interface on the impugned domain name "www.baxvip.com", thereby CS(COMM) 259/2024 Page 13 of 16 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 25/03/2024 at 22:06:28 violating the Plaintiff's copyright.
26.3. Defendant No. 2 is directed to:
i. Block/ delete/ takedown the following links/ YouTube accounts, mentioned in Document-A to the plaint:
ii. Within a period of four weeks from today, file in a sealed cover, the Basic Subscriber Information of the afore-mentioned account holders, as are available with them.
26.4. Defendant No. 3 is directed to:
i. Block/ delete/ takedown the following links/ Telegram accounts, mentioned in Document-B to the plaint:
ii. Within a period of four weeks from today, file in a sealed cover, the information concerning the afore-mentioned account holders, including the name, contact details, postal address, bank account details, e-mail address etc., as are available with them.
26.5. Defendant No. 4 is directed to:
i. Block/ delete/ takedown the following links/ WhatsApp accounts, CS(COMM) 259/2024 Page 14 of 16 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 25/03/2024 at 22:06:28 mentioned in Document-C to the plaint:
ii. Within a period of four weeks from today, file in a sealed cover, the Basic Subscriber Information concerning the afore-mentioned account holders, as are available with them.
26.6. Defendant No. 5 is directed to:
i. suspend/ block the impugned domain name "www.baxvip.com". ii. Within a period of four weeks from today, file in a sealed cover, all information concerning the registrant of the impugned domain name, including, name, contact details, postal address, e-mail address, bank account details, KYC documents, as are available with them. 26.7. In the event content identical to what has been injuncted through this order resurfaces on Defendants No. 2 to 5's platforms, the Plaintiff shall be at liberty to supply the concerned URLs to the said Defendants, who shall take appropriate action to block/ takedown the same in accordance with law.
However, in case the concerned Defendant comes to the conclusion that the content of the URLs provided by the Plaintiff is not identical to what has been injuncted, they shall inform the Plaintiff of the same, within a period of CS(COMM) 259/2024 Page 15 of 16 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 25/03/2024 at 22:06:28 one week from the date of receipt of the request, whereafter Plaintiff shall be free to take recourse to appropriate measures available under law. 26.8. Defendants No. 6 and 7 are directed to issue necessary directions to the telecom service providers and internet service providers to block access to the website hosted on the impugned domain name "www.baxvip.com".
27. Issue notice. Counsel for Defendants mentioned in the appearance above, accept notice on behalf of their respective Defendants. Reply, if any, be filed within four weeks from today. Rejoinder thereto, if any, be filed within two weeks thereafter.
28. Compliance of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 be done within one week from today.
29. Re-notify on 28th August, 2024 SANJEEV NARULA, J MARCH 22, 2024 nk CS(COMM) 259/2024 Page 16 of 16 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 25/03/2024 at 22:06:28