The Delhi High Court on 2nd August 2022 observed that advent of e-commerce has given opportunities by providing an alternate platform to small and medium entrepreneurs to showcase their products and conduct their business in a profitable manner as their outreach is enhanced but it has also created various challenges to the protection of IPR rights too.
Facts
In the present suit, the grievance of the plaintiff {Aakash Aggarwal} against the defendants {Flipkart Internet Private ltd. and others} is that the said platform is encouraging and allowing third party sellers to “latch on” and use Plaintiff’s trade mark “V Tradition”, along with the photographs used for showcasing and promoting plaintiff’s products in relation to women’s clothing on Flipkart platform, causing huge damage to the plaintiff.
Plaintiff’s Contention
Plaintiff seeks various reliefs including permanent and mandatory injunction restraining trademark infringement and passing off, etc. against defendant & various other sellers, who have unlawfully latched on to plaintiff’s product and photographs.
Plaintiff’s contention is that there are certain features on the Flipkart platform which are accruing damages to the plaintiff. For eg. latching on feature. When a seller approaches the platform for listing its products on the site the portal gives recommendation regarding best seller products. In this case Flipkart platform permitted unauthorised third-party seller to add plaintiff’s brand name and photographs as part of their product listing by way of opportunities option under latching on feature of Flipkart. Because of which several third-party sellers are able to portray themselves as “V Tradition” and ride on the popularity of the products and design of the plaintiff.
Defendants’ Contentions
The counsel submitted that the mark “V Tradition” is not registered hence Flipkart can’t check if mark is entitled to protection or not. Flipkart also said that the said listings would be taken down within 48 hours upon receiving the URLs from the plaintiff.
Court’s Observations
The Delhi High Court opined, allowing third party seller to latch on to plaintiff’s name and photograph is nothing but taking an unfair advantage of the goodwill earned by plaintiff’s business. Encashing on the reputation of plaintiff is wrong.
Plaintiff demonstrated it by effecting purchases by such third-party sellers who were using identical photographs of plaintiff model and the name “V Tradition” so as to show how he is able to purchase five identical- looking products, sold by 3rd party sellers under the mark “V Tradition”.
On the basis of demonstration before the court, the bench noted that Flipkart is permitting other third-party sellers to latch on to the best seller in a particular segment of product, resulting in misuse of plaintiff ‘s brand.
The Court ruled that any infringement made by 3rd party is liable to be taken down as it’s detrimental to the brand owner of the product.
The balance of convenience lies with plaintiff till next hearing, Flipkart and all other stand restrained from latching onto mark “V Tradition”.
Date: 2nd August 2022
Case Title: Akash Aggarwal v. Flipkart Internet Private Ltd. and others
Bench: Justice Prathiba M. Singh
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