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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prathiba M. Singh, J.
Facebook Inc – Appellant
Versus
Surinder Malik and Others – Respondents
Civil Miscellaneous (M) No. 1263, 1267 of 2019
Decided On : 28-08-2019
Trademark - Infringement - Information Technology Act, 2000 - Section 74 - Section 79 - Information Technology (Intermediaries Guidelines) Rules, 2011
Fact of the Case:
The Plaintiff filed a suit for permanent injunction, restraining infringement of trademark 'DA MILANO' and sought protection under Section 74 of the Information Technology Act, 2000. Defendants No.1 to 4 advertised and offered to sell products bearing the mark 'DA MILANO' on Facebook and Instagram. Defendants 5 and 6 claimed exemption from liability as intermediaries under Section 79 of the IT Act.
Finding of the Court:
The court interpreted the role of platforms like Facebook and Instagram as intermediaries under the IT Act and ruled that they have a duty to take down infringing posts upon notification by the Plaintiff, in accordance with the Information Technology (Intermediaries Guidelines) Rules, 2011.
Issues: The main issue was the liability of Facebook and Instagram as intermediaries for infringing posts on their platforms.
Ratio Decidendi: The court relied on the interpretation of Section 79 and the Guidelines under the IT Act, as established in the case of Shreya Singhal v Union of India, to determine the duty of platforms as intermediaries and the process for taking down infringing posts.
Final Decision: The suit was decreed against Facebook and Instagram, directing them to take down posts bearing the mark 'DA MILANO' upon notification by the Plaintiff, and to abide by any court orders related to the same.
JUDGMENT :
Prathiba M. Singh, J.
Cm APPL. 38450/2019 (for exemption) in CM(M) 1263/2019
CM APPL. 38535/2019 (for exemption) in CM(M) 1267/2019
1. Allowed, subject to all just exceptions. Applications are disposed of.
CM(M) 1263/2019 & CM APPL. 38449/2019 (for stay) CM(M) 1267/2019 & 38534/2019
2. The Plaintiff/Respondent-Mr. Surinder Malik (hereinafter "Plaintiff") had filed the suit for permanent injunction, restraining infringement of trademark and passing off, and under Section 74 of the Information Technology Act, 2000 (hereinafter, "IT Act") seeking protection of the trademark 'DA MILANO'. The Plaintiff claims to be the owner of the mark 'DA MILANO' in various forms including in label and logo forms. Defendants No.1 to 4 in the suit are alleged infringers who have put posts on the Facebook and Instagram platforms advertising and offering to sell products bearing the mark 'DA MILANO'. The Plaintiff sought a permanent injunction against the alleged infringers and impleaded Facebook Inc. and Instagram LLC as Defendants No.5 and 6 so as to ensure that the posts containing the infringing marks are taken down.
3. The Defendants 5 and 6 do not dispute the rights of the Plaintiff in the trade mark 'DA MILANO' but state that they are exempted from liability, under Section 79 of the IT Act, as they are mere intermediaries.
4. The Trial Court had, vide its impugned order dated 19th March, 2019 directed Defendants No.5 and 6 to remain present for recordal of the statement under Order X CPC. The said order reads as under:
In between on 01.11.2018 various applications filed on behalf of the defendant no. 5 and 6.
At the same time Ld. Counsel for the defendant no.7 also filed application under Order 1 rule 10 CPC as well as another application under Order 6 Rule 17 CPC.
At this stage, Ld. Counsel for the plaintiff has no objection, if defendant no.7 be deleted from the array of parties subject to the undertaking of his information to court as to any change in the agreement /further development.
Statement of Ld. Counsel for the plaintiff as well as Ld. Counsel for the defendant no.7 to this effect recorded separately. Ld. Counsel for the defendant no.7 has withdrawn his application under Order 1 rule 10 CPC subject to furnishing of requisite address of the Facebook Ireland Ltd.
The requisite address furnished.
Separate applications filed on behalf of defendant no. 5 and 6 respectively under Order 6 rule 17 CPC and another application of defendant no. 5 under Section 151 CPC for substitution of name of Instagram LLC with Facebook Inc. Copies of these applications be provided.
Ld. Counsel for the plaintiff has filed an application under Order 39 rule 1 and 2 CPC r/w Section 151 CPC.
Re-list for arguments on these amendment applications. While hearing the submissions of both the sides in the light of controversy in issue, this court requires appearance of parties in person for examination under Order 10 CPC.
Re-list on 01.06.2019."
Defendant Nos.5 and 6 sought recall of this order and exemption from personal appearance. The said application was considered on 1st June, 2019 when the impugned order was passed. The order reads:
"An application moved on behalf of defendant No. 5 and 6 u/s 151 of CPC seeking modification of order dated 19.03.2019/exemption from personal appearance. Copy supplied.
No plausible reason has been cited for seeking exemption of defendant no. 5 and 6 nor their Attornies are present. This court observes that the defendants are prolonging the matter unnecessarily. This court requires the examination of the defendant no.5 and 6 for certain clarifications in respect of the issues in pleadings.
Reply sought to be filed by the plaintiff. Be filed within a month. Once again pursuant to the order dated 19.03.2019, this Court directs the defendant no. 5 and 6 to comply with the directions and to appear before their application seeking modification is entertained. The matter s
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