Indiamart Intermesh Limited v. Mr Sameer Samim Khan & Ors

J U D G M E N T (O R A L) %

10.10.2023

¶1The plaintiff is in the business of running an electronic business-to-business

(B2B) portal under the webpage www.indiamart.com and associated copyrighted applications. Goods and services can be advertised and sold by anyone who so chooses, over the web portal of the plaintiff.

¶2It is claimed that the plaintiff is India's first B2B directory which commenced operations in 1996. As on date, it is asserted that the plaintiff has over 149 million buyers, who have access to 7.1 million suppliers for over 83 million products. The plaintiff's copyrighted App is stated to have 10 million downloads as on 30

December 2021 on the Google Play Store. The plaintiff has been awarded the 'Video Content in a Business Website-Special Mention' at Video Media Awards and Summit, 2019; 'Best Online Classified Website' at Drivers of Digital Summit & Awards, 2018; 'Best Business App Award' at GMASA, 2017; Manthan Award, 2013 under the 'E-business and Financial Inclusion' category for its path-breaking and low-cost solution to SMEs called buy-leads, launched in 2012; 'Special Contribution Award' at WASME-Super SME Awards, 2016 and 'Best Online Classified Website Award' at Drivers of Digital Awards, 2016, etc.

¶3The mark "INDIAMART" was coined by the plaintiff in 1996, and the domain name "indiamart.com" was registered on 8 March 1996. The plaintiff is also the holder of the following registrations under the Trade Marks Act, 1999, which are valid and subsisting as on date:

S. No. Mark Type Class Registration No. INDIAMART WORD MARK (CAPITAL) 1693946 INDIAMART WORD MARK (CAPITAL) 1693949 INDIAMART WORD MARK (CAPITAL) 1693951 INDIAMART WORD MARK (CAPITAL) 1693953 INDIAMART WORD MARK (CAPITAL) 1693955 INDIAMART WORD MARK (CAPITAL) 1693961 INDIAMART WORD MARK (CAPITAL) 1693965 INDIAMART WORD MARK 1693966

(CAPITAL) INDIAMART WORDMARK (CAPITAL) 1693967 INDIAMART WORDMARK (CAPITAL) 1693968 INDIAMART WORDMARK (CAPITAL) 1693969 INDIAMART WORDMARK (CAPITAL) 1693970 INDIAMART WORDMARK (CAPITAL) 1693971 INDIAMART WORDMARK (CAPITAL) 1693972 INDIAMART WORDMARK (CAPITAL) 1693973 INDIAMART WORDMARK (CAPITAL) 1693974 INDIAMART WORDMARK (CAPITAL) 1693975 INDIAMART WORDMARK (CAPITAL) 1693976 INDIAMART WORDMARK (CAPITAL) 1693977 INDIAMART WORDMARK (CAPITAL) 1693979 INDIAMART WORDMARK (CAPITAL) 1693980 INDIAMART WORDMARK (CAPITAL) 1693981 INDIAMART WORDMARK (CAPITAL) 1486285 DEVICE MARK

1693921 Indiamart WORDMARK (SMALL) 2997209 Indiamart WORDMARK (SMALL) 2997207 DEVICEMARK 1693922 DEVICEMARK I (Italics) 1150935 INDIAMART DEVICEMARK I 1267627

(Italics) INDIAMART DEVICEMARK I (Italics) 1267628 DEVICEMARK II (indiamart with LABEL) 1693923 DEVICEMARK II (indiamart with LABEL) 1693924

DEVICEMARK III (indiamart with LOGO) 1693925 DEVICEMARK III (indiamart with LOGO) 1693927

DEVICEMARK III

(LOGO) 1693929

DEVICEMARK III (indiamart with LOGO) 1693931

DEVICEMARK III (indiamart with LOGO) 1693933 DEVICEMARK III (indiamart.com with LOGO) 1693935

DEVICEMARK III (indiamart.com with LOGO) 1693937

DEVICEMARK III (indiamart with LOGO) 1693932

DEVICEMARK III (indiamart.com with LOGO) 1693934

DEVICEMARK III (indiamart.com with LOGO) 1693936

DEVICEMARK III (indiamart.com with LOGO) 1693938 DEVICEMARK III (indiamart with LOGO) 1693928

DEVICEMARK III (indiamart with LOGO) 1693926 DEVICEMARK III

(LOGO) 1693930 DEVICEMARK IV (indiamart.com) 1693939 DEVICEMARK IV (indiamart.com) 1693940 DEVICEMARK V (indiamart with label) 2130079 DEVICEMARK V (indiamart with label) 2130078 IIL WORDMARK 1538724 DEVICEMARK (INDIAMART LEADERS OF TOMORROW) 2210045 INDIAMART LEADERS OF TOMORROW WORDMARK (INDIAMART LEADERS OF TOMORROW) 2185079

DEVICEMARK V (indiamart.com with label) 2130075 INDIAMART LEADING SUPPLIER WORDMARK 3801250 INDIAMART TRUSTSEAL WORDMARK 2003607 INDIAMART BUYLEAD WORDMARK 3992333 INDIAMART BUY LEAD WORDMARK 3995431 INDIAMART FEATURED PREMIUM LISTING WORDMARK 3848928 INDIAMART INDUSTRY LEADERSHIP PACKAGE WORDMARK 3848935 INDIAMART PRIME WORDMARK 3848979 INDIAMART CITY PREMIUM LISTING WORDMARK 3848559

¶4The plaintiff is also the registrant of the following domain names which include "INDIAMART" as a part thereof: S. No. Domain names

¶1indiamart.com

¶2indiamart.co.in

¶3indiamart.ind.in

¶4indiamart.net.in

¶5indiamart.org.in

¶6paywithindiamart.co.in

¶7paywithindiamart.net

¶8paywithindiamart.com

¶9paywithindiamart.in

¶10indiamart.co.nz

¶11indiamart.co.uk

¶12indiamart.sg

¶13indiamart.jp

¶14indiamartpay.com

¶15indiamart.org.cn

¶16indiamart.com.cn

¶17indiamart.net.cn

¶18indiamart.ph

¶19newindiamart.com

¶20indiamart.com.tw

¶21indiamart.tv

¶22indiamart.net

¶23b2bindiamart.com

¶24myindiamart.com

¶25indiamartpay.in

¶26indiamartpay.co.in

¶27indiamart.at

¶28indiamartb2b.com

¶5The sales revenue of the plaintiff has multiplied from 2019 to 2022 and, in 2021-22, till December 2022, was in the region of ₹ 550 crores. Over ₹ 1.63 crore was invested by the plaintiff towards advertising its services in 2020-2021 alone.

¶6The plaintiff also claims that its "INDIAMART", , , ,

and marks constitute "original artistic works" within the meaning of Section 2(c) of the Copyright Act, 1957.

¶7The plaintiff is aggrieved by the illegal appropriation, by the defendant, of "INDIAMART" as well as the distinctive

logos , , ,

, , as part of its domain names, as is apparent from the e-mail Ids indiamart.co.in@gmail.com, indiamart.hr.co.in@gmail.com and india-mart.co and wecare@india-mart.co.

¶8Defendant 2-GoDaddy.com LLC is the domain name registrar

(DNR) for the said domain names. A screenshot from the defendant's website is also thus provided, to emphasise the poaching, by the defendant, of the plaintiff's trade mark and logo:

¶9Ms. Pokharia, learned Counsel for the plaintiff, submits that the two gentlemen, whose photographs are reflected in the afore-extracted screenshot are in fact the promoters of the plaintiff. It is submitted that the use, by the defendant, of "INDIAMART" amounts to clear infringement of the plaintiff's registered trade mark and passing off, by the Defendant 1, of its services as those provided by

the plaintiff.

¶10Predicated on these submissions, the plaintiff has instituted the present suit, seeking a decree of permanent injunction, restraining Defendant 1 and all others acting on his behalf, from using the trade mark "INDIAMART" or any deceptive variation thereof, which is identical or confusingly similar to the plaintiff's registered trade mark "INDIAMART" as well as from using the artistic works vested in the artistic representation of the logos , , ,

, , comprising the colour combination, get-up, layout, arrangement of matter, in any manner, thereby amounting to the infringement of the copyright of the Plaintiff residing in the artistic work. Additionally, the plaint prays that the Defendant 2 be directed to immediately take down/suspend or block the domain names https://indiamart.co/ and wecare@india-mart.co and to disclose the identity of the persons in whose name the domain names have been registered.

¶11Defendant 1 has not filed any response to the present suit and has remained continuously absent. Accordingly, he was set ex-parte by order dated 12 September 2023.

¶12As of today, the only surviving substantive defendants are Defendants 1 to 4, who are

(i) Mr. Sameer Samim Khan

- Defendant 1

(ii) GoDaddy.com LLC

- Defendant 2

(iii) Reliance Jio Infocomm Ltd. - Defendant 3

(iv) Union Bank of India

- Defendant 4

¶13In my considered opinion, no contentious issue arises which would require evidence to be led. The case is clear as crystal. Defendant 1 has clearly been using the plaintiff's registered "INDIAMART" trade mark and has also copied the plaintiff's logo to provide its services.

¶14Matters have progressed to the extent where Defendant 1 has in fact also put up the picture of the plaintiff's promoters on its website, apparently to mislead consumers into believing an association between the plaintiff and Defendant 1.

¶15Apparently, aware of the fact that Defendant 1 has no substantive defence to offer, no written statement has been filed by Defendant 1 till date.

¶16Accordingly, the suit shall stand decreed in the following terms:

(i) Defendant 1, his associates, partners, agents, franchisees, representatives, servants, licensees and all other acting for and on his behalf are permanently injuncted from using the trademark INDIAMART or any other mark which is deceptively or confusingly similar to Plaintiff's trademark

INDIAMART.

(ii) Defendant 1 and others acting on its behalf is further restrained from using impugned logos , , , , , , comprising the colour combination, get-up, layout, arrangement of matter which are infringing of plaintiff's copyright in the artistic work.

(iii) Defendant 2-GoDaddy.com LLC is directed, forthwith, to transfer the domain names https://indiamart.co/ and wecare@india-mart.co to the plaintiff for which purpose Ms. Pokharia undertakes to provide the account details of the plaintiff to learned Counsel for Defendant 2, during the course of the day.

(iv) Status quo shall be maintained with respect to the Mobile No. 9372944497 and Bank Account No. 274010100021790, which shall continue to remain frozen.

¶17Insofar as the aspect of damages and costs are concerned, Ms. Pokharia prays for punitive damages in the circumstances of the case.

¶18Mr. Arjun Basra, who appears on behalf of Cyber Cell, submits that Defendant 1 was operating multiple accounts in which amounts in the region of about ₹ 1.5 crores have been defalcated by Defendant 1

from various innocent persons.

¶19Ms. Pokharia submits that, as per the status report from Cyber Cell, an amount of ₹ 10 lakhs stands deposited in account number 274010100021790 of the Union Bank of India registered in the name of Defendant 1. This, however, seems only to be the tip of the iceberg.

¶20As Defendant 1 has not chosen to contest the present matter or enter appearance, I am inclined to grant punitive damages in favour of the plaintiff and against Defendant 1, especially in view of the manner in which Defendant 1 has resorted to a nefarious scheme to dupe innocent persons, in the process infringing the plaintiff's registered trade mark and representing itself as associated with the plaintiff.

¶21Accordingly, the plaintiff is also entitled to a decree for ₹ 10 lakhs against Defendant 1, payable within a period of four weeks from today. Ordered accordingly.

¶22The suit stands decreed in the aforesaid terms.

¶23Let a decree sheet be drawn up accordingly.

C. HARI SHANKAR, J.

OCTOBER 10, 2023/dsn

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(COMM) 631/2022 & I.A. 14980/2022, I.A. 14984/2022 INDIAMART INTERMESH LIMITED ..... Plaintiff Through: Ms. Deepika Pokharia, Mr. Nitin Sharma and Mr. Naman Tandon, Advs. versus MR SAMEER SAMIM KHAN & ORS. ..... Defendants Through: Ms. Hetu Arora Sethi, ASC for GNCTD with Mr. Arjun Basra, Adv. for IFSO Spl. Cell, Delhi Police Ms.Shweta Sahu, Adv. for D-3 CORAM: HON'BLE MR. JUSTICE C. HARI SHANKAR