Background:
The plaintiff, Christian Louboutin SAS, is a manufacturer of luxury shoes and claims to enjoy goodwill and trademark protection over its brand name, founder's name and image, and the red sole mark.
The defendants operate the website www.darveys.com, which offers for sale various products bearing the plaintiff's trademarks, without authorization.
Intermediary Liability Under Section 79 of the IT Act
Section 79 of the IT Act provides exemption from liability to intermediaries for third-party information/data hosted on their platforms.
However, this exemption is not absolute and has certain conditions - the intermediary must not initiate the transmission, select the receiver, or modify the information.
The intermediary must also observe due diligence and comply with government guidelines.
The exemption is lost if the intermediary conspires, abets, aids, or induces the commission of an unlawful act.
Factors Determining Intermediary Status:
Mere self-identification as an intermediary does not automatically qualify a platform under Section 79.
Factors like actively identifying sellers, enabling them, promoting products, selling products, collecting payments, packaging and delivering goods, etc. indicate active participation beyond that of a neutral intermediary.
The platform's policies, agreements with sellers, enforcement of terms, and measures to protect intellectual property rights are also relevant.
Liability of Darveys.com:
Darveys.com's conduct, including promoting products, providing authenticity guarantees, controlling the sales process, etc. suggest that it is not a neutral intermediary.
Its use of the plaintiff's marks, founder's name and image without authorization amounts to trademark infringement, dilution and passing off.
Darveys.com cannot claim exemption under Section 79 of the IT Act.
Orders:
Darveys.com must disclose seller details, obtain certificates of genuineness, and notify the plaintiff before offering its products.
It must remove any infringing meta-tags and take down listings of counterfeit products upon notification.
Darveys.com is directed to comply with certain measures to ensure sale of genuine products and protection of the plaintiff's intellectual property rights.
Case Citation: Christian Louboutin Vs Nakul Bajaj: 02.11.2018: CS (COMM) 344/2018:2018:DHC:7106: Delhi High Court: Prathiba M Singh: H.J.
Advocate Ajay Amitabh Suman
IP Adjutor [Patent and Trademark Attorney]
