Delhi High Court
Today Merchandise Pvt Ltd & Anr vs Www.Bagittoday.Net.In on 10 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 768/2017
TODAY MERCHANDISE PVT LTD & ANR
..... Plaintiff
Through: Mr.Setu Niket with Ms. Isha
Mazumdar, Advocates.
versus
WWW.BAGITTODAY.NET.IN ..... Defendant
Through: None.
% Date of Decision: 10th November, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J:
I.A. No. 13130/2017
1. Present application has been filed under Order XIII-A read with
Section 151 CPC.
2. The relevant facts of the present case are that the plaintiff no.1,
which is a part of the Living Media India Limited ("India Today
Group"), owns and operates website namely www.bagittoday.com.
Bagittoday is an exclusive, invitation-only online shopping website
where members discover premier brands and private sale products,
each open for a brief time span. The plaintiffs focus is to provide a
collection of sought-after offerings, selected from the best brand
names in the world, combined with a great service.
3. It is stated that the plaintiffs‟ business resembles that of a
marketplace and its website is akin to a retail store, wherein the
products are merely offered/advertised for sale and the owner of the
store is not necessarily the manufacturer of goods offered/advertised
for sale in the store. It is further stated that all the products/goods
offered for sale on the website are genuine/original products.
4. It is averred in the plaint that the plaintiffs were the first to
adopt the trademark „Bag It Today‟ in 2009 and the said mark has
become synonymous with the plaintiffs trade and business.
5. It is stated that the plaintiffs word mark bagittoday, is registered
in several countries, including but not limited to India. In India,
application for the registration of the word mark bagittoday, was made
on 02nd December, 2009, claiming use since 12th August, 2009 and
registration under Classes 9 and 41, was granted on 28th March, 2011.
6. Learned counsel for the plaintiffs submits that „Today‟ is the
common feature of a series of trademarks belonging to and used by the
India Today Group and that the mark „Today‟ is a source identifier.
7. Learned counsel for the plaintiffs states that in January, 2015, it
came to the knowledge of the plaintiffs that a website was operating
under the name and style www.bagittoday.net.in and the said website
was engaged in the online shopping business, being identical to that of
the plaintiffs‟ website, i.e. www.bagittoday.com.
8. Learned counsel for the plaintiffs states that the plaintiffs
obtained and started using the domain name www.bagittoday.com
from 12th August, 2009, whereas the defendant started using the
impugned domain name, www.bagittoday.net.in, from 11 th October,
2014.
9. Learned counsel for the plaintiffs states that the defendant has
knowingly, wrongfully and unlawfully registered a domain name
which is identical to the registered trademark of the plaintiffs, „Bag It
Today‟. In addition, he states, that since the defendant carries on
business identical to the business carried on by the plaintiffs, there is
increased likelihood of confusion amongst the unwary consuming
public and that the defendants are attempting to mislead unsuspecting
consumers, taking undue advantage of the faith the public has in the
plaintiffs‟ group.
10. Vide order dated 24th May, 2017, it was recorded that the
defendant was duly served, but since the defendant did not appear
despite service, it was proceeded ex-parte by this Court vide order
dated 23rd August, 2017.
11. Having heard learned counsel for the plaintiffs, this Court is of
the view that as the issues have not been framed and oral evidence is
yet to be recorded, the present application is maintainable.
12. Order XIII-A of the Act, 2015 empowers this Court to pass a
summary judgment, without recording evidence, if it appears that the
defendant has no real prospect of defending the claim.
13. In the opinion of this Court, the defendant has no real prospect
of defending the claim as it has neither entered appearance nor filed its
written statement or denied the documents of the plaintiffs. Further,
the plaintiffs are the prior users of the identical mark, domain name
and are the owners of the registered trademark, i.e. bagittoday.
14. As far as the prayer with regard to the damages is concerned,
this Court is of the opinion that since the plaintiffs have not led any
evidence with respect to the quantum of damages suffered by the
plaintiffs, the same cannot be granted in light of the Division Bench
judgment of this Court in Hindustan Unilever Limited Vs. Reckitt
Benckiser India Limited, 2014 (57) PTC 495 [Del][DB]. In fact, this
Court recently in Super Cassettes Industries Private Limited Vs.
HRCN Cable Network, CS(COMM) 48/2015 dated 09th October,
2017 has held as under:-
"19. However, this Court is not satisfied on the evidence
led in the present case that the compensation awarded is
inadequate in the circumstances having regard to the
three categories in Rookes v. Barnard, [1964] 1 All ER
367 and also the five principles in Cassell & Co. Ltd. v.
Broome, 1972 AC 1027. In the event punitive damages
are awarded in the present case, it would be an ad-hoc
judge centric award of damages, which the Division
Bench specifically prohibited in Hindustan Unilever
Limited (supra)..."
15. Consequently, the present suit is decreed in accordance with the
paragraph 36(a), (b) and (d) of the plaint along with the actual costs
incurred by the plaintiffs. The cost shall amongst others include the
lawyers‟ fees as well as the amounts spent on purchasing the court
fees. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J
NOVEMBER 10, 2017/KA
