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48. Mr. Dhond's submission is that in these days of wide (and deep) Internet access, it is inconceivable that the Plaintiffs' Café Madras is, as Mr. Ajatshatru would have it, entirely unknown Paragraphs 3.9 to 3.13 of the written arguments [1976] FSR 256 [1980] PRC 343 [1901] A.C. 217 [1976] FSR 545 [1901] 2 Ch 513 (1996) 5 SCC 714 35 of 49 NMS-2586-2012-S-2549-2012-CAFE MADRAS-F.DOC outside the city. I believe Mr. Dhond is correct. In earlier times, such a spread of information and knowledge would have been difficult to achieve and perhaps restricted only to the most posh and upper-end eateries. This is no longer true. The proliferation of websites that rank and review popular hotels and eateries puts information not only on desks of users from outside the immediate environs of any particular establishment but makes it available today even on cellphones and handheld devices. There are any number of such sites internationally, and some exclusively for Indian hotels and restaurants. The most popular of these are, possibly, Zomato.com and Burrp.com, among others. That these are used by almost everyone is self-evident. If further proof is needed, it is in this very record, and it is provided by the Defendant itself. For, in its listing of the so-called other eateries with the same name (Exhibit "C" to the Defendant's Affidavit in Reply dated 7th August 2014) 44 of the 51 items are cross-linked by their website addresses to entries and locations at zomato. The others are similar search engines (yellowpages.co.in, plus.google.com, mojostreet.com, timescity.com). Indeed, all the entries save one in this list are cross-

referenced to some search engine, the only exception being that of a restaurant in a starred category hotel chain (ITC Hotels' Grand Chola, Chennai); and even that is referenced to a website. All of these are publicly accessible without geographical limitation. If this is so, then there can be no question that the Plaintiffs' reputation is not locally confined, contrary to what Mr. Ajatshatru suggests. Indeed, that suggestion is entirely without any kind of factual material to support it. Now a mere listing on one of these directory- style repositiories is perhaps insufficient. On zomato.com, for instance, establishments are listed by area or city. Would that be a 36 of 49 NMS-2586-2012-S-2549-2012-CAFE MADRAS-F.DOC sufficient defence? I do not believe so. For the Kamaths' reputation is not limited to these listings. It extends to a top-ranking in a generalized search on popular search engines. One consequence is that a market search by the Defendant prior to its adoption of the mark was not only possible, but had it been done would undoubtedly have shown the Plaintiffs' mark. A second consequence is that this material constitutes sufficient prima facie evidence of prior use by the Plaintiffs and of the extent of their reputation and goodwill. The third consequence follows, viz., damage to the Plaintiffs, their reputation and their goodwill by reason of the Defendant's adoption of the mark and, further, in the facts of this particular case, actual damage as a result of the curious incident of the rat in the sambar. It is possible, I think, to use these facets to derive a simple principle: a plaintiff's mark's reputation, goodwill and prior use may be supplemented with Internet-based material. Where such material exists, a rival user is expected to know of it and a defendant may even be deemed to be aware of it. The burden must then lie on the defendant to show that the rival use of the mark is such as would have no effect on the plaintiff's continued use of that mark. The fact that a defendant's mark or goods or service bearing that mark are not easily traceable on such Internet-based material is not enough to discharge that burden; for, evidently, any person adopts a mark only with a view to foster and build a reputation. In addition, where there is sufficient globally-accessible Internet material to show damage or to raise a presumption of damage to the plaintiff by the defendant's use of the mark, the defendant's burden is that much greater. This is in one sense something very like the 'butterfly effect' (we might call it 'the Google paradigm'): an adverse event in one place may well have severe consequences to the proprietor of a mark though he is in 37 of 49 NMS-2586-2012-S-2549-2012-CAFE MADRAS-F.DOC another place altogether. The two users may be separated by much geographical distance. This paradigm is a bridge across that physical space; the illicit use by the rival arcs across geography and affects the claimant. It is also not necessary to show actual damage; where the rival use is such that an ordinary person would not unreasonably associate news of the adverse event in the defendant's goods or services as having happened to the plaintiff, confusion and deception must be held to have been established. It is also no answer any longer to say that because a person has a business such as an eatery (which needs a fixed 'abode') in one town, his reputation travels no further unless it is part of a chain. Nor is Café Madras alone in this. There are evidently many others that enjoy such a reputation.30