Dabur V. Ashok
Dabur India Limited files suit seeking permanent injunction and damages in respect of infringement of its various intellectual properties, including the trademark DABUR, copyright in the labels and packaging of its various products, passing off and unfair competition.
Plaintiff owns the well-known trade mark DABUR which was coined by them in 1884. Plaintiff is a leading manufacturer and seller of a large variety of products such as pharmaceuticals, toiletries, food products and medicinal preparations. The Plaintiff?s products are also exported abroad.
The Plaintiff grievance is that there are various domain names and websites including https://www.daburdistributor.com, https://daburdistributorships.in, www.daburfranchisee.in etc. which carry the mark DABUR and depict various products of DABUR. These websites portray themselves to be the Plaintiff and call for the franchisees and distributors to register themselves for being appointed as agents for selling DABUR products. On one such websites, payment amounting to Rs. 25,000/- is sought from such franchisees and distributors for registering themselves.
The Plaintiff submits that the names of the parties, who have registered such domain names are not clear as the Registrars have allowed the said registrants to avail privacy protect services. The Plaintiff further submit that the contact details for such domain names are not even available on https://www.whois.com database for domain names. The Plaintiff submits that the legal rights of the Plaintiff are severely affected by the impugned use of the mark DABUR and various logos of the various products and images thereof.
The Court observed that there is no doubt that the impugned websites severely impinge upon the Plaintiff?s rights due to illegal use of the Plaintiff?s mark DABUR, product packaging, trade dress, logos, labels, etc. The attempt is to infringe and pass off as well as to indulge in complete impersonation of the Plaintiff itself.
Considering facts of the case, the Court is convinced that the Plaintiff has made out a prima facie case for the grant of ex-parte injunction and the balance of convenience is in favour of the Plaintiff. The Court has also perused the judgment of ld. Single Judge of the Hon?ble Hight Court of Delhi in UTV Software Communication Ltd. and Ors. v. 1337X to and Ors., 2019 (78) PTC 375 (Del), wherein the Court has observed that the blocking of websites is a cumbersome exercise, and some policy ought to be framed in this regard. The relevant observations of the Court are as under:
?104. This Court is of the view that since website blocking is a cumbersome exercise and majority of the viewers / subscribers who access, view and download infringing content are youngsters who do not have knowledge that the said content is infringing and / or pirated, it directs the MEITY/DOT to explore the possibility of framing a policy under which is a warning is issued to the viewers of the infringing content, if technologically feasible in the form of e-mails, or pop-ups or such other modes cautioning the viewers to cease viewing/downloading the infringing material. In the event the warning is not heeded to and the viewers /subscribers continue to view, access or download the infringing/pirated content, then a fine could be levied on the viewers/subscribers.?
In view of the above, the Court directs the Defendant Nos. 4 and 5 to immediately block the domain names and the websites. The Court further restrained the Defendants 4 and 5 from transferring the said domain names or creating any third-party interest on the same. The Court ordered the Defendant Nos. 2 and 3 to issue directions to all ISPs to block the impugned websites and any other websites, except the Plaintiff?s websites, bearing the mark DABUR. The Court further directs the Defendant Nos. 4 and 5 to disclose to the ld. Counsel for the Plaintiff and file an affidavit before this Court within a week from the receipt of the copy of Order, as to the details of the registrants or the persons who have registered the infringing domain names along with their complete contact details, postal address, email address, bank account details, and telephone numbers, etc.
The Courts ordered the registrants of the infringing domain names to cease the use of the domain names and pull down the websites hosted on the said domain names with immediate effect. Further, the email addresses reflected on the said websites are also ordered to be de-activated. The Court restrained Defendant Nos. 4 and 5 from allowing any third-party, apart from the Plaintiff, from registering domain names using the trade mark DABUR.