Today Merchandise Pvt Ltd & Anr vs WWW.BAGITTODAY.NET.IN

Manmohan, J

I.A. No. 13130/2017

Present application has been filed under Order XIII-A read with Section 151 CPC.

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 Groupâ€​), 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.

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.

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.

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.

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 “Todayâ€​ is a source identifier.

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 plaintiffsâ€

website, i.e. www.bagittoday.com.

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 11th October, 2014.

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 Todayâ€. 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 plaintiffsâ€​ group.

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.

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.

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.

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.

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)…â€​

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.