The court found that the Defendants' exemption under Section 79 of the IT Act cannot be determined at this stage and should await trial. The suit was allowed to proceed only with regard to the alleged liability of the Defendants using suggestion tools, and the relief of mandatory injunction was rejected summarily.

JUDGMENT

(Prayer: This Application is filed under Order XIV Rule – 8 of O.S. Rules r/w under Order XIII-A of CPC praying to dispense with the procedure of trial and pass a Summary Judgment in the above suit dismissing the plaint with costs.)

1. The Defendants in the suit are the Applicants. By this application, the Defendants pray for a summary judgment for the dismissal of the suit.

2. The Applicants/Defendants stated that the first Defendant is a domain name registrar (DNR). An organization called the Internet Corporation for Assigned Names and Numbers(ICANN) is the umbrella organization with regard to domain names. More than 1200 generic top level domain registrars and more than 2300 ICANN accredited registrars operate under ICANN. The National Internet Corporation of India (NIXI) is the Indian registry for .in domain names. Domain names are available on a first-cum-first-served basis. According to the Applicants, they are intermediaries as per Section 2(1)(w) of the Information Technology Act, 2000 (the IT Act). Since the Applicants are intermediaries, the Applicants asserted that they are entitled to the exemption provided for under Section 79 of the IT Act.

3. The Applicants contended that the suit has been filed only against one DNR and its group company in India. By such suit, the Respondent/Plaintiff seeks to restrain alleged infringement of trademark and passing off and seeks a mandatory injunction for the removal of the trademarks 'Purva,' 'Puravankara' and 'Puravankara Projects Limited' used separately or in combination with top level domains or sub domains and for the transfer of such domain names to the Respondent/Plaintiff or its authorized representatives. According to the Applicants/Defendants, the Plaintiff has no real prospect of succeeding in the suit. Apart from the protection under Section 79 of the IT Act, the Applicants also contended that necessary parties such as ICANN, NIXI and the alleged infringing registrants were not joined. Consequently, the suit is liable to be dismissed. The Applicants pointed out that the Plaintiff has registered trademarks in seven classes under the Trade Marks Act, 1999 (the Trade Marks Act) and contended that the protection under the Trade Marks Act is confined to the classes in which the trademarks are registered and, even within such classes, the protection is restricted to the relevant goods or services. Unlike a trademark which is used in relation to specific goods or services, a domain name is not limited to particular goods or services. It is an address on the Internet, which applies without such limitation. In such context, the Applicants asserted that the Respondent/Plaintiff cannot claim monopoly on a pan-class basis. Hence, the reliefs claimed are untenable. The Applicants also pointed out that the word ''Purva'' has at least three meanings, namely, elder, easterly wind and east. It is also the name of a community in Kasaragod, North Kerala. The Applicants state that there are at least 650 existing domain names which use the words ''Purva'', ''Puravankara'' and ''Puravankara Projects Limited'' or a part thereof.

4. The Applicants/Defendants pointed out that the World Intellectual Property Organization(WIPO) has established the Uniform Dispute Resolution Process(UDRP) for domain name disputes. Consequently, the Respondent/Plaintiff has an effective alternative remedy, which is inexpensive and expeditious. The Applicants also contended that the relief would be ineffective, even if granted, because there are about 2300 DNRs operating under ICANN, about 130 DNRs operating under NIXI, and that the first Applicant/first Defendant is only one of the 2300 DNRs operating under ICANN. As a result, any of the other 2299 DNRs would still be in a position to use the allegedly infringing domain names. The Applicants also pointed out that the Respondent/Plaintiff has not shown a single existing domain name which is infringing. All the examples cited by the Respondent/Plaintiff are o