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IN THE HIGH COURT OF BOMBAY
A.P. Shah, J.
Rediff Communication Limited ..... Plaintiffs.
Versus
Cyberbooth another..... Defendants.
Notice of Motion No...... of 1999 in Suit No. 1881 of 1999, decided on 22 23-4-1999.
Advocates appeared :
Virendra Tulzapurkar i/b. S.D.D. Phatarphekar, for the plaintiffs.
Rahul Chitnis with Jaideep Mitra, for the defendants.
Section 2-Infringement of copyright-Passing off-Trade mark Rediff of plaintiff quite similar in nature to trade mark Rediff of defendant-Field of activities also quite similar and overlapping-Field of activities being rendering services through internet-There is every possibility of internet under being confused and deceived in believing that both names of trade mark belong to one common source and connection-Passing-off established-Injunction allowed. The plaintiffs are carrying on their business of communication and providing services through the internet. Amongst the services provided by the plaintiffs, the plaintiffs are publishing advertisement of their clients by setting up web pages for their clients and/ or by publishing their clients advertisements on the plaintiffs web pages. The plaintiffs also provide service such as sale of cinema tickets of selected theatres in Bombay, make hotel bookings and selling books and other goods etc. The services of the plaintiffs under trade marks/domain name REDIIT have been widely published. The turnover of the plaintiffs group companies is over Rs. 250/erores. The plaintiff companys individual turn over is also substantial. In the instant case both the plaintiffs and the defendant have common field of activity. They are operating on the web site and providing information of similar nature. Both the plaintiffs and the defendants offer facility of sale of books, music cassettes and compact discs and flowers. Both offer a chat line and both presently offer a cricket opinion poll. There can be no doubt that the two marks domain names, REDIFF of plaintiffs and REDIFF of the defendants are almost similar. When both domain, names are considered it is clearly seen that two names being almost similar in nature there is every possibility of internet user being confused and deceived in believing that both domain names belong to one common source and connection although two belong to different persons.
The explanation given by the defendants makes no sense inasmuch as the defendants want Court to believe that from the alleged phrase radical, information future free, the word REDIFF was coined. Court is prima facie satisfied that the only object in adopting the domain name RED IFF was to trade upon the reputation of the plaintiffs domain name. The argument that the field of activity is different is also without any substance. Since the field of activity of plaintiff and the defendant is clearly similar and overlapping.
Leave to amend the plaint and the Notice of Motion in terms of the draft amendment.
Mr. Chitnis for the defendants waives service.
By consent, Notice of Motion is taken up for hearing.
2.This is an action in passing off. The plaintiffs have filed the present suit for a permanent injunction restraining the defendants from using the mark/domain name "RADIFF" or any other similar name so as to pass off or enable others to pass off their business or goods or services as for the business or goods or services of the plaintiffs. The plaintiffs are also seeking a permanent injunction restraining the defendants from using the mark "RADIFF" or any other word on mark either as part of their trade name or trading style which is deceptively similar to plaintiffs' trading style and/or "REDIFF" or using the get up, concept and lay out, etc., so as to pass off the defendants' product and/or services as those of the plaintiffs or in some way connected with the plaintiffs. The plaintiffs are further seeking an injunction against the defendants from using the literary or artistic work found on the plaintiffs' web page or infringing the defendants copyright thereon without the plaintiffs' licence. Along with the suit, the plaintiffs have taken out this Notice of Motion for interlocutory injunctions.
3.The plaintiffs, Rediff Communication Limited are an on line media company carrying on the business of communication and providing services through the internet since 6th January 1997. The plaintiffs submit that they are a group company of Rediffusion Dentsu Young and Rubicam Advertising Limited. The word "REDIFF" is comprised of the first six letters of the their group companies' corporate names and is associated with the plaintiffs and their group companies. The plaintiffs have on 8th February 1997 registered the domain name "REDIFF. COM", with Network Solutions, Inc. a company registered under the law relating to companies ("NSI"). The plaintiffs submit that they have a large turn over of Rs. 0.31 crores and Rs. 1.93 crores over the last two years, respectively.
4.The plaintiffs have alleged that in March 1999 they learnt that the defendants have got registered the domain name "RADIFF. COM" with the NSI on 31st January, 1999. According to the plaintiffs, the action of the defendants in registering the domain name "RADIFF' with NSI and establishing and broadcasting a web page on the Internet with the title "RADIFF ONLINE" is clearly intended cause members of the public to believe that the defendants are associated with the plaintiffs and/or part of the Rediffusion group with whom the words and mark "RADIFF" are exclusively associated. The plaintiffs submit that the defendants have adopted the word "RADIFF" as part of their trading style deliberately with a view to pass of their business services as that of the plaintiffs and to induce members of the public into believing that the defendants are associated with the plaintiffs and/or the Rediffusion group by so adopting and using the word "RADIFF" which is deceptively similar to "RADIFF" which is trading name and style of the plaintiffs. The plaintiffs submit that the adoption of the word "RADIFF" which is deceptively similar to the plaintiffs trade name and style by the defendants is dishonest and has been done with the deliberate intention to pass off the defendants business, goods and services as those of the plaintiffs and thereby illegally trade upon the reputation of the plaintiffs.
5.In contesting the Motion, the defendants have filed affidavit of defendant No. 3. It is contended inter alia that the word "RADIFF" is coined by taking the first three letters of the word 'radical', the first letter of the word 'information', the first letter of the word 'future' and the first
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