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_____________ https://www.mhc.tn.gov.in/judis A.No.4983 of 2021 in C.S.No.669 of 2015

8. For all the reasons set out above, the Respondent/Plaintiff contended that a case is made out for proceeding with the suit and that the application for summary judgment is liable to be dismissed.

9. By way of rejoinder, the Applicants/Defendants relied on the judgment in Lungove v. Vedanta Resources PLC [2020] A.C.1045 (Vedanta Resources) to contend that an application under Order XIII-A should be tested on the basis of the merits of the respondent or non-applicant's case. By drawing reference to the judgment in Syrma Technology Private Limited, Chennai v. Powerwave Technologies Sweden AB(in Bankruptcy), (2020) 8 MLJ 332 (Syrma Technology), the Applicants contended that Rule 4 of Order XIII-A is mandatory, and that sub-Rule 3 thereof prescribes that the respondent to such application should file a reply disclosing all material facts, identify the point of law, if any, and state the reasons why the relief sought by the applicant therein should not be granted. The said sub-rule also prescribes that the respondent should include any documentary evidence on which it seeks to rely upon and state why there are real prospects of succeeding on the claim. On account of non-compliance with the requirements of sub-Rule 3 of Rule 4 of Order XIII-A by the _____________ https://www.mhc.tn.gov.in/judis A.No.4983 of 2021 in C.S.No.669 of 2015 Respondent/Plaintiff, it was contended that the burden of proof on the Applicants is considerably reduced. By relying upon the judgment in The Himalaya Drug Company, the Applicants contended that, as held therein, an intermediary such as the first Applicant, cannot decide in advance that the domain name in question is infringing. By way of illustration, it was contended that the first Applicant/first Defendant cannot adjudicate whether the proposed use of a domain name containing the word ''Purva'' is infringing because such adjudicatory function is the sole preserve of courts or other adjudicatory bodies and cannot be performed by a DNR such as the first Applicant. The Applicants reiterated that about six classes of necessary party, including other DNRs under ICAAN, ICANN, NIXI and the alleged infringing registrants (users of similar trademarks on GoDaddy) have not been joined. The Applicants concluded their submissions by pointing out that a list of well known surnames and well known trademarks is maintained by the Registrars of Trade Marks and that the marks over which the Respondent/Plaintiff claims exclusivity, such as ''Puravankara'', are not included in the said list.

The expression electronic record is defined widely in the IT Act and the Applicants clearly qualify as persons who receive and provide services in respect of electronic records. The Applicants also relied on several judgments such as Hindustan Unilever Limited and Invental Products to contend that Godaddy was held to be an intermediary in those judgments, and the Respondent/Plaintiff was unable to effectively controvert this contention. By proceeding on the basis that the Applicants are intermediaries, the entitlement to exemption from liability under Section 79 should be examined. Section 79 is as under:

79. The Applicants/Defendants also contended that the process of suggesting alternatives is automated since it is operated by a proprietary algorithm. In a recent pronouncement, the Delhi High Court concluded in Snapdeal Private Limited v. Godaddycom LLC and Others, LA.5407 of 2021 in CS (Comm) 176 of 2021 (Snapdeal) that GoDaddy is not entitled to _____________ https://www.mhc.tn.gov.in/judis A.No.4983 of 2021 in C.S.No.669 of 2015 exemption from liability under Section 79 because it offers alternative domain names to registrants and at varying prices. At this juncture, on the basis of the documents on record, the nature of the suggestion tools, the manner in which such tools function, the role played by persons availing of the services of the Applicants/Defendants vis-a-vis the role played by the Applicants/Defendants in relation thereto, cannot be ascertained to the extent necessary to pronounce summary judgment on exemption from liability because such determination would, at a minimum, involve a mini- trial.