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2019 Supreme(Del) 1047
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, J.
FLIPKART INTERNET PRIVATE LIMITED - Appellant
Vs.
W.W.W. FLIPKARTWINNERS.COM AND OTHERS - Respondent
Civil Suit (Comm) No. 1177 of 2018; Interlocutory Application No. 14229 of 2018, 14232 of 2018
Decided On : 26-02-2019
Saurabh Srivastava, Adv., Shilpa Gupta, Adv., Vaarish K Sawlani, Adv., T.N. Durga Prasad, Adv., Gagan Kumar, Adv., Siddharth Jain, Adv., A.C. Mishra, Adv., Pallavi Dubey, Adv., Azhar, Adv.
The court upheld the rights of the registered and prior user of trademarks and decreed the suit in favor of the plaintiff due to the defendants' failure to contest the claim.
Headnote:
Trademark Infringement - Online Marketplace - Trade Marks Act, 1999 - Section 42(i) to (iv)
Fact of the Case:
The plaintiff, an online marketplace, filed a suit for trademark infringement, passing off, and other reliefs against the defendants. The court granted an ex parte ad interim injunction in favor of the plaintiff. The defendants did not contest the suit, and the plaintiff gave up certain prayers. The court held that the defendants had no real prospect of defending the claim and decreed the suit in favor of the plaintiff.
Finding of the Court:
The court found that the plaintiff was the registered and prior user of the trademarks in question, and the defendants had not contested the suit, leading to a decree in favor of the plaintiff.
Issues: Trademark infringement, passing off, compliance with injunction orders, relief sought by the plaintiff
Ratio Decidendi: The court decreed the suit in favor of the plaintiff as the defendants did not contest the claim, and the plaintiff was the registered and prior user of the trademarks in question.
Final Decision: The present suit was decreed in favor of the plaintiff and against the defendants in accordance with the prayer clause of the plaint, along with actual costs.
Manmohan, J.
Present suit has been filed for infringement of trademark, passing off, rendition of accounts, delivery up, damages etc. The prayer clause is reproduced hereinbelow:-
"42. In light of the foregoing, it is most respectfully prayed that this Hon'ble Court may be pleased to:
i. Pass an order and decree of permanent injunction restraining the Defendant Nos.1 to 5 (and such other websites/entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff's trademark rights), their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from using the mark "Flipkart" or any deceptive variant thereof which is identical and/or similar to the Plaintiff's trademark "Flipkart" in respect of domain name, lucky draw contest or any other manner thereby amounting to infringement of Plaintiff's trademark;
ii. Pass an order and decree of permanent injunction restraining the Defendant Nos.1 to 5 (and such other websites/entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff's trademark rights), their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from using the mark "Flipkart" or any deceptive variant thereof which is identical and/or similar to the Plaintiff's trademark "Flipkart" in respect of domain name, lucky draw contest or any other manner thereby amounting to passing off the Plaintiff's services;
iii. Pass an order and decree directing the Defendant Nos.6 to 27, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, to block access to the various websites identified by the Plaintiff in the instant suit at S.No.2 of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights.
iv. Pass an order and decree directing the Defendant Nos.28 and 29 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various websites identified by the Plaintiff in the instant suit at S.No2 of the list of Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights.
v. An order for damages of Rs.2,00,01,000/- to be paid by the Defendant Nos.1 to 5 (and such other websites/entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff's trademark rights), to the Plaintiff on account of their illegal and infringing activities and a decree for the said amount be passed in favour of the Plaintiff (the Plaintiff reserve their right to claim additional damages and amend the pleadings accordingly once the magnitude of the Defendants' illegal/infringing activities and the revenues earned by the Defendants' in pursuance to such illegal/infringing activities is ascertained upon discovery in the instant action);
vi. An order for rendition of accounts of profits illegally earned by the Defendant Nos.1 to 5, (and such other websites/entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff's exclusive rights), on account of their illegal registration of domain names containing the Plaintiff's trademark "Flipkart" and hosting the website with such domain name representing that the services/lucky draw contests are being offered by the Plaintiff; vii. An order for costs in the present proceedings in favour of the Plaintiff;"
2. Vide order dated 12th October, 2018, this court granted an ex parte ad interim injunction in f
