News detail

11
Nov
2018

Christian Louboutin Sas(Plaintiff) vs Nakul Bajaj and Others(Defendants) ……A case of online sales and liabilities of intermediaries…….

Plaintiff claims to be a manufacturer of luxury shoes. Plaintiff claims that their name, likeness and photographs of Mr. Louboutin enjoy protection and goodwill under the Trademark Act. It is preferred among celebrities and famous among the general masses. The name ‘Christian Louboutin’, in word form and logo form , are registered trademarks in India. The Plaintiff further claims that it’s products are sold only through an authorized network of exclusive distributors. The sales in India is made in Mumbai and one in Delhi which are authorized by the Plaintiff.
According to the Plaintiff, the Defendants operates a website by the name www.darveys .com (Darveys.com). The Plaintiff alleges that the Defendants, offer for sales and sell various products on their website, bearing the luxury brand name of the Plaintiff. The Defendant’s website contains the complete “Christian Louboutin” product catalogue. The plaint has alleged the Defendants’ goods to be a counterfeit. The Defendant, apart from the Plaintiff’s reputed products, they have also used the image of the founder of the Plaintiff and the names “Christian” and “Louboutin” are also used as meta-tags. By using such meta-tags the Defendant attract traffic to their website. This, according to the Plaintiff, the Defendants’ website gives an impression that it is in some manner sponsored, affiliated and approved for sale of a variety of luxury products bearing the marks of the Plaintiff’s genuine products. This has resulted in infringement of the trademark rights of the Plaintiff, violation of the personality rights of Mr. Christian Louboutin and dissolution of the luxury status enjoyed by their products and brands.
The Court, by keeping the above facts, passed ex-parte ad-interim injunction and restrained the defendants to sell or offer for sale the registered trademark of Plaintiff.
The Defendants, thereafter, filed their written statement in which they have pleaded that;
The customers who happen to visit their website are given choice of booking products from any of the 287 boutiques/sellers from across the globe. The products offered are completely genuine and are sold directly by the sellers.
The Defendants are not selling the products but they merely enable booking of order through their online platform.
The Defendant’s denied their products to be fake since they sell products belonging to the original brand owners/ manufacturers and get the owner’s name displayed over the product. Since the Defendant do not change the physical condition of the product, their is no impairment.
Particularly about the Plaintiff, the Defendant states the following in their written statement:
That the Defendant is not aware about the reputed status of Mr. Christian Louboutin.
They are not aware about various types of goods marketed by the Plaintiff.
They have no direct dealings with the Plaintiff.
They only offer for sale various luxurious items of different concerns over their website, by booking orders only.
The advertisement expenses are borne by the Defendant only without involving the Plaintiff.
Though the goods of Plaintiff was offered for sale on the website of the Defendant, the responsibility was taken over by the sellers, on whose behalf the goods were offered for sale.
The Court, after perusal of the pleadings, found no factual issues arise for determination in this case. Both the parties’ pleadings are pure facts. Defendant’s website is admitted. Plaintiff’s ownership of the mark is not disputed. The criteria or issues determined by the Court include:
Section 79 of the Information Technology Act, 2000.
The relevance of E-Commerce platforms and their liability as intermediaries.
The Court stated that Darvey.com cannot be termed as ‘intermediary’ since they are unaware about the sellers and their genuine products nor they are aware about the ultimate purchasers.
Darverys.com is directed to disclose the complete details of it’s sellers with immediate effect
Darverys.com shall obtain certificate from the seller that the goods are genuine
If the sellers are not located in India, Darvey.com shall obtain concurrence from before offering the said products for sale on its platform
If the sellers are located in India, proper agreement shall be made in which it shall obtain guarantee as to authenticity of the product.
All meta-tags consisting of the Plaintiff’s marks shall be removed with immediate effect
No order for damages or loss of accounts or costs is passed by against the Defendant since they have not sold any of the product/s of the Plaintiff through their website but only advertise and promote their products.

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