Delhi High Court - Orders
Hell Energy Magyarorszag Kft. & Anr vs National Internet Exchange Of India ... on 30 May, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 494/2024
HELL ENERGY MAGYARORSZAG KFT. & ANR. ..... Plaintiff
Through: Mr. Nihit Nagpal, Mrs. Bindra Rana
and Ms. Devika Mehra, Advocates.
versus
NATIONAL INTERNET EXCHANGE OF INDIA (NIXI) & ORS.
..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 30.05.2024 I.A. 31161/2024(seeking exemption)
1. Exemption is granted, subject to all just exceptions.
2. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. Disposed of.
I.A. 31162/2024(seeking leave to file additional documents)
4. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
5. If Plaintiff it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
6. Disposed of.
I.A. 31163/2024(seeking exemption from advance service to MEITY and CS(COMM) 494/2024 Page 1 of 10 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 03/06/2024 at 22:27:26 DoT)
7. Issue notice to Defendants No. 2 and 3, by all permissible modes, upon filing of process fee, returnable on 6th November, 2024.
I.A. 31164/2024(seeking exemption from pre-litigation mediation)
8. As the present suit contemplates urgent interim relief, in light of the judgment of Supreme Court in Yamini Manohar v. T.K.D. Krithi,1 exemption from attempting pre-institution mediation is granted.
9. Disposed of.
I.A. 31165/2024(seeking permission to file court fee)
10. For the grounds and reasons stated therein, the application is allowed. Plaintiff is granted one week's time to file court fees along with process fee.
11. The application is disposed of.
CS(COMM) 494/2024
12. Let the plaint be registered as a suit.
13. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants 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.
14. 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 CS(COMM) 494/2024 Page 2 of 10 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 03/06/2024 at 22:27:26 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.
15. List before the Joint Registrar for marking of exhibits on 04th September, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
16. List before Court for framing of issues thereafter.
I.A. 31160/2024(u/O XXXIX Rules 1 and 2 of CPC)
17. The Plaintiffs have filed the present suit to safeguard their reputation, public image, and trademark rights, which they allege are being tarnished by certain unknown imposters. These imposters have been impleaded as 'John Doe'/Defendant No. 11. 2 They are operating fake websites without authorization and causing significant harm to the Plaintiffs' brand identity and consumer trust.
18. Plaintiff No. 1, Hell Energy Magyarorszag Kft. (Hell Energy Hungary Limited), is a company incorporated under the laws of Hungary. They are the registered proprietor of the trademarks "HELL", " ", " " " " and " " in Class 32 under the Trade 1 2023 SCC OnLine SC 1382.
CS(COMM) 494/2024 Page 3 of 10This 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 03/06/2024 at 22:27:27 Marks Act, 19993, in respect of energy drinks. Plaintiff No. 1 holds various registrations for the aforementioned marks, among others, across multiple international jurisdictions, pertaining to the goods and services they offer. These registrations not only reinforce their claim to the marks but also demonstrate the global recognition and protection of their brand. The details of relevant trademark registrations in India and elsewhere are set out in Paragraphs No. 42 and 23 of the plaint respectively, and documents to support such registrations have been placed on record. Further, Plaintiff No. 1 also owns and operates the domain names www.hellenergy.com and www.hellenergystore.com. Plaintiff No. 2, Hell-Energy Private Limited, is a company incorporated under the laws of India, engaged in importing and marketing 'Hell Energy Drinks' in India.
19. In April 2024, the Plaintiffs received information that their trademarks are being misused by the Imposters, who have registered the domain names "hellenergypvt.com" and "hell-energy.in". Plaintiffs allege that the e-mail addresses associated with the aforenoted domain names are being utilised by the Imposters to dupe and defraud unsuspecting members of the general public into making financial investments by purportedly offering distributorships for the Plaintiffs' products. This is demonstrated by referring to certain communications received by the Plaintiff from several recipients of such fraudulent emails, which enclose therewith fictitious distributorship agreements. Illustrative screenshots of one such email communication and distributorship agreement are reproduced hereunder:
2 Hereinafter referred to as "the Imposters".
3 "the Act"CS(COMM) 494/2024 Page 4 of 10
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 03/06/2024 at 22:27:27 "E-mail communication CS(COMM) 494/2024 Page 5 of 10 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 03/06/2024 at 22:27:27 Distributorship Agreement "
20. Several persons have fallen prey to fraudulent activities, resulting in significant financial losses, the details of which are outlined in the plaint. These deceptive communications also reference a corporate entity named 'Hell Energy Drink Private Limited'. However, according to investigations conducted by the Plaintiffs, no such company exists in the records of the Ministry of Corporate Affairs (MCA). This discrepancy highlights the CS(COMM) 494/2024 Page 6 of 10 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 03/06/2024 at 22:27:28 sophisticated nature of the fraud, leveraging non-existent corporate entities to lend credibility to their deceitful schemes and further emphasizing the urgency of addressing these fraudulent actions to protect the public and Plaintiff's business interest.
21. Based on the pleadings and documents attached to the plaint, the Plaintiffs have prima facie established their ownership of the trademark "HELL" and its derivative marks, along with their goodwill associated with these marks. Furthermore, as evidenced by the provided screenshots and other materials on record, it is apparent that the Imposters are misusing the Plaintiffs' registered trademarks. Specifically, they have incorporated the marks "HELL" and "HELL ENERGY" entirely in their impugned domain names hellenergypvt.com and hell-energy.in, as well as the email address [email protected]. Furthermore, the Imposters are displaying the Plaintiffs' trademarks on their dubious websites and in fraudulent email communications, thereby creating a false impression of legitimacy by exploiting the Plaintiffs' well-established goodwill and reputation. This deceptive portrayal is not only misleading to the general public but also constitutes a clear infringement of the Plaintiffs' registered trademarks and an act of passing off. Moreover, it must be emphasised that there is strong element of public interest in this matter, as the pleadings and documents reveal that at least four victims have already suffered substantial financial loss consequent to being deceived by the fraudulent activities of the Imposters. Thus, the fraudulent activities of the Imposters would not only likely result in an erosion of the Plaintiffs' reputation, but also has the potential to cause grave financial injury to the public at large.
22. In view of the above, the Court finds that the Plaintiffs have made out CS(COMM) 494/2024 Page 7 of 10 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 03/06/2024 at 22:27:29 a strong prima facie case in their favour and in case no ex-parte ad-interim injunction is granted, Plaintiffs will suffer an irreparable loss; balance of convenience also lies in favour of the Plaintiffs and against the Imposters/ Defendant No. 11.
23. Accordingly, till the next date of hearing, the following directions are issued:
23.1. The unknown Defendant No. 11, and/or anybody acting on their behalf, are restrained from using the trademarks "HELL"/ "HELL ENERGY" and/or any other mark identical and/or deceptively similar to the Plaintiffs' trademarks "HELL"/ "HELL ENERGY"/ " ", " " " ", amounting to infringement or passing off, as part of their impugned domain names and/or any other website/ mode of communication, including inter alia email addresses, social media accounts and advertisements.
23.2. Defendants No. 4 and 5, the Domain Name Registrars, are directed to lock, block and suspend access to the concerned impugned domain names hellenergypvt.com and hell-energy.in, which are registered with them.
Defendant No. 1 (NIXI) is directed to issue appropriate directions to ensure compliance in this regard.
23.3. Defendant No. 6 to 9 are directed to freeze the respective bank CS(COMM) 494/2024 Page 8 of 10 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 03/06/2024 at 22:27:30 accounts registered with them bearing No. 60478426947 (IFSC Code:
MAHB0000089) and No. 55517922218, (IFSC Code: CBIN0280623), and disclose the identity of the beneficiaries of the said bank accounts, along with their bank account opening forms, KYC documents, complete bank statement from the date of opening account till the date of order, as available with them, in sealed cover with this Court, along with a copy thereof to the Plaintiffs, who shall use the said information solely for the purposes of impleadment and further investigation.
23.4. Defendant No. 10, Vodafone Idea Ltd., is directed to disable the mobile No. 9930373710 of the Imposters/ Defendant No. 11 and disclose the identity of the holder of the said mobile number, file the sim card application form and KYC documents as available with them, in sealed cover with this Court, along with a copy thereof to the Plaintiffs, who shall use the said information solely for the purposes of impleadment and further investigation.
23.5. Defendants No. 2 (MeitY) and 3 (DoT) to issue necessary directions/ notifications to all concerned Internet Service Providers (ISPs) and Telecom Service Providers (TSPs) in India, to block access to the websites "www.hellenergypvt.com" and "www.hell-energy.in".
24. Compliance of Order XXXIX Rule 3 of CPC be done with one week from today.
25. Issue notice, upon payment of process fee, by all permissible modes, returnable on the next date of hearing. Reply, if any, be filed within four weeks from date of service. Rejoinder thereto, if any, be filed within two weeks thereafter.CS(COMM) 494/2024 Page 9 of 10
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 03/06/2024 at 22:27:32
26. List before the Court on 06th November, 2024.
SANJEEV NARULA, J MAY 30, 2024 d.negi CS(COMM) 494/2024 Page 10 of 10 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 03/06/2024 at 22:27:32