YONKER SKATES PVT LTD. Vs. BOTS AND ANOTHER

JUDGEMENT

(1.) Vide order dated 11th December, 2017, a decree was passed in favour of plaintiff and (i) against the defendant no.1 I-BOTS, of permanent injunction restraining infringement of trade mark and passing off and of recovery of damages and costs, and, (ii) against the defendant no.2 Flipkart Internet Pvt. Ltd., of permanent injunction restraining the defendant no.2 from selling the skates or allowing sale on its portal of skates for the purpose of sports with the trade mark 'YONKER', and, (iii) of mandatory injunction directing the defendant no.2 to, within one month therefrom, furnish to the plaintiff all the particulars in its power and possession of the person/s selling the skates under the name 'YONKER' on its portal.

(2.) The defendant no.2 seeks modification of the aforesaid order pleading (a) that the defendant no.2 falls within the definition of 'intermediary' under Section 2(1)(w) of the Information Technology Act, 2000 (IT Act); (b) that Section 79 of the IT Act exempts an intermediary from any liability for any third party information, data or communication link made available or hosted by it; (c) that the limited obligation imposed on an intermediary is to exercise due diligence in terms of Rule 3 of Information Technology (Intermediary Guidelines) Rules, 2011; (d) that the defendant no.2 imposes an embargo on its users from uploading content in which they do not possess the relevant rights and at the same time gives content owners the option of notifying the defendant no.2 in the event it is found by the user that any content hosted on the website is without licence or of infringing nature; (e) that the decree for permanent injunction against the defendant no.2 has the effect of defeating the 'safe harbour' provisions of Section 79 of the IT Act. Modification of the order dated 11th December, 2017 is sought to the effect that upon the plaintiff notifying the defendant no.2 of specific URL(s) where goods under the mark 'YONKER' of the plaintiff are being sold/made available, the defendant no.2, within 48 hours thereof will remove the list of the goods under the mark 'YONKER'.

(3.) The counsel for the plaintiff appears on advance notice and considering the nature of the application, need to call for reply thereon is not felt and the counsels have been heard.