ADOBE SYSTEMS INCORPORATED Vs. ROHIT RATHI

JUDGEMENT

(1.) THE plaintiff, inter alia, seeks a decree of permanent injunction restraining the defendants from using the domain name www. adobeinc. org or using any other business or domain name containing the trademark "adobe" or any other deceptively similar variant of the said trademark on the internet or otherwise so as to amount to infringement of the plaintiff's registered trademark. A permanent injunction restraining the defendants from passing off their goods, services, business or domain name as that of the plaintiff has also been sought. The plaintiff has also prayed for a mandatory injunction directing the defendant no. 1 and the defendant No. 2 to transfer the domain name www. adobeinc. org to the plaintiff as well as to render all assistance to the plaintiff in bringing about the said transfer. A decree for damages of Rs 20 lakhs has also been sought alongwith costs.

(2.) ON 28. 09. 2007, this court directed the issuance of summons in the suit, returnable on 19. 02. 2008. The summons had been served on defendant No. 2 both through registered AD post as well as dasti. This is recorded in the order dated 19. 02. 2008. However, insofar as the defendant No. 1 was concerned, the only address which was available to the plaintiff was the e-mail address which had been revealed to the plaintiff upon conducting a WHOIS search on the internet. The e-mail address of the defendant No. 1, as revealed is, " rht_rathi@yahoo. com. In the said order dated 19. 02. 2008, it is further recorded that the physical address given in the WHOIS search is apparently fictitious and incomplete. The mobile telephone number also appeared to be incomplete inasmuch as it comprised of only seven digits, whereas mobile telephone numbers are of ten digits.

(3.) ON 22. 02. 2008, the learned counsel for the plaintiff submitted that the summons had been sent to the defendant No. 1 on the aforesaid e-mail address. An affidavit of Mr Gurjot Singh, who is the Head of the IT Department in the plaintiff's lawyers firm, was filed. The affidavit indicated that the summons had been sent through e-mail to the defendant No. 1. A copy of the print out taken from Tata Communications (the e-mail service provider) also indicated that the message had been successfully relayed to rht_rathi@yahoo. com. Consequently, this court concluded that the defendant No. 1 had been duly served with the summons. By virtue of the said order dated 22. 02. 2008, since neither of the defendants had entered appearance despite service of summons, they were directed to be proceeded against ex parte. The plaintiff was required to file its affidavits by way of evidence. The plaintiff has filed the affidavit of Mr anand Banerjee (PW-1) by way of evidence. The said affidavit is marked as exhibit PW-1/a. Mr Anand Banerjee (PW-1) is the constituted attorney of the plaintiff. A notorised copy of the letter of authority issued in his favour by the plaintiff has been filed.