In this case Delhi High Court attempted to clarify the responsibilities and liability of online intermediaries for trademark infringement. The judgement clarifies India’s intermediary liability regime as it relates to trademark infringement. The Plaintiff is Christian Louboutin owner of registered trademarks, including the single colour mark for its distinctive “red sole”. According to plaintiff these products are sold in India only by authorised dealerships. The defendant is “darveys.com”, a website marketing itself as a “luxury brands marketplace”. The plaintiff alleges trademark infringement against the defendant, by selling counterfeit goods. The defendant argued the goods sold to be genuine and there was no infringement on its part because it was mere intermediary and is entitled to be protected by “Safe harbour” provision of section 79 of IT Act,2000. In this case Delhi High Court examine ‘intermediary’ under section 2(w) of IT Act and also discussed intermediary position in the EU, the US and in India. At last court concludes that the defendant is more than an intermediary and exercise complete control over product being sold. Therefore, the conduct of intermediaries in failing to observe ‘due diligence’ with respect to IPR could amount to conspiring, aiding, abetting or inducing unlawful conduct would disqualify it from the safe harbour exemption, as per Section 79(3)(a). Finally, the Court ordered that the intermediary must require its sellers to honour the warranties and guarantees provided by the plaintiff, and must also remove all meta-tags containing the plaintiff’s mark.
Case Number: CS (COMM) 344/2018, I.As. 19124/2014, 20912/2014, 23749/2014 & 9106/2015
Bench: Justice Pratibha M. Singh
Court: Delhi High Court
Decided on: 02/11/2018