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23. Modicare is in the direct selling business and sells products related to varied fields such as health, nutrition, skin care, cosmetics, personal care, home care, food, beverage, etc. Modicare offers its products direct to consumers through its direct sellers, called Modicare Consultants, who have a binding contract with Modicare, through the Consultant Application Form, as well as the Modicare‟s Business/Code of Ethics. Modicare‟s Code of Ethics prohibits its Consultants to sell Modicare products through alternative methods of sale i.e., retail or online sales. For Modicare Consultants, there is no joining fee, no sales pressure and no requirement to maintain minimum inventory of products with them. In addition, on the basis of the sales by each Consultant, various incentives are offered to Consultants. Regular seminars and training workshops are held by Modicare for its Consultants.

25. That sometime in June, 2016, Modicare found that several of its products were being offered for sale and sold on Amazon‟s platform, without its consent. It is the case of Modicare that the said sale was being facilitated by Amazon through its Fulfilled by Amazon service. Since no seller details were available on Amazon, Modicare claims that to the best of its knowledge, Defendant Nos.2 and 3 were not its Consultants. Modicare then addressed an email to Amazon dated 5th October, 2016, pointing out the rampant sale of Modicare products on Amazon, without the consent of Modicare and that Amazon is not authorised to sell Modicare products on its platform. In response, Amazon simply redirected the representative of Modicare to file specific complaints qua each impugned product through its complaints‟ portal. Thereafter, the representative of Modicare requested to speak to a higher official to address its issue. On 13 th January, 2017, Amazon responded to the email dated 5th October, 2016, and took the stand that it was only an intermediary, entitled to protection under Section 79 of the IT Act. It also claimed that it was not a party to any transaction on the said marketplace and it also does not control any transaction occurring on the said portal. Amazon also averred that it does not play an active role in manufacturing, marketing, pricing and selling or purchasing of the products and that it is a mere facilitator of the transactions between the buyer and the seller. Insofar as the Guidelines are concerned, Amazon stated that these were merely advisory guidelines, and could not be enforced against them. In response to the change in warranties on Amazon, it replied as under:

26. Modicare then filed the present suit against Amazon, pleading that the unauthorised sale of Modicare products on Amazon is impermissible, illegal, and unauthorised. The grounds taken by Modicare are similar to the grounds raised by Amway. Modicare also pleaded misrepresentation, change of warranties/guarantees, and return policies. It also pleaded that the customers of Modicare are also likely to get confused as to the source of the products being sold on Amazon, believing that the sale so being conducted has been consented to by Modicare, however, Modicare would not legitimately be able to answer them as to why the benefits of the Customer Satisfaction Program are not available to them.

27. It is submitted that there have been many customer comments on Amazon platform, showing dissatisfaction with Modicare products, and bringing into question the genuineness of the same. This severely impairs the goodwill that Modicare has been able to create and will cause irreparable loss to it.

28. Modicare, further avers that Amazon lists more than 700 products bearing the mark Modicare. This renders it impossible for Modicare to verify and ensure the authenticity of each and every product being sold. Further, the products are being sold on Amazon at hefty discounts, resulting in the declining sales of Modicare products, through its direct selling network. The sale of the products, at such low prices, according to Modicare, also raises a doubt as to the genuineness of the said products. Sale of counterfeit products being made available through Amazon, with no way of verifying the identity of the seller, could pose a huge risk to health and safety of its consumers as well, which in turn would cause damage to the reputation of Modicare. Thus, by concealing the contact details of the sellers, Amazon is facilitating rampant counterfeiting of the goods of Modicare, and inducing sellers to illegally sell Modicare products. This amounts to tortious inducement of breach of contract by Amazon, causing Modicare Consultants to breach their contracts with Modicare. Lastly, it is averred that listing of Modicare products on Amazon is in contravention of the Legal Metrology Act and Legal Metrology (Packaged Commodity) Rules, 2011 (as amended in 2017), as Amazon is listing Modicare products, either without mention of MRP or with inflated MRP. This constitutes misrepresentation and is violative of applicable laws.