Full Text
HIGH COURT OF DELHI
Date of Decision: 5th December, 2024
AKSHAY TANNA .....Plaintiff
Through: Mr. Zulfiquar Memon, Mr. Swapnil Srivastava, Mr. Chirag Naik, Mr. Noopur Matharwala and
Mr. Jayesh Srivastava, Advocates.
Through: Mr. Madhav Khosla, Advocate for D-3.
JUDGMENT
1. The present suit has been filed seeking relief of permanent injunction restraining the defendants from infringing the personality and publicity rights, goodwill and reputation of the plaintiff, along with other ancillary reliefs.
PLEADINGS IN THE PLAINT
2. The plaintiff is a distinguished individual with a notable career in the investment and private equity sector.
3. The plaintiff is an alumnus of the Wharton School of Business at the University of Pennsylvania, where he graduated Magna Cum Laude with a Bachelor of Science in Economics.
4. After graduating, the plaintiff began his professional journey at Merrill Lynch, where he served in both New York and London offices. Thereafter, the plaintiff worked in the financial institutions group at Deutsche Bank in New York.
5. Subsequently, the plaintiff worked with TPG Capital India Private Limited for thirteen(13) years, where he spearheaded TPG's Growth and Rise investment activities in sectors such as consumer, technology, and financial services in India.
6. The plaintiff, for his expertise and contributions to the investment and private equity industry, was featured in The Economic Times “40 under 40” in 2020.
7. Since August 2023, the plaintiff has been serving as a partner and head of private equity at KKR India Advisors Private Limited, a subsidiary of Kohlberg Kravis Roberts & Co. L.P. (hereinafter the "KKR"). KKR, a prominent firm in investment management headquartered in the United States, provides financial services including alternative asset management, capital markets, and insurance solutions, with an extensive global presence through its international offices. The plaintiff’s appointment to the partner’s role was prominently covered by leading news outlets.
8. KKR, since its inception in 1976, has continuously and extensively utilized the trademarks "Kohlberg Kravis Roberts" and its acronym "KKR" (collectively referred to as "KKR Trademarks") KKR holds exclusive ownership and proprietary rights to these trademarks globally, including in India, where the trademarks are registered under Class 36, encompassing financial services such as investment and asset management, investment advisory, merchant banking, and capital markets services.
9. The defendant no.1 [John Doe/ Ashok Kumar] are unknown persons engaged in illegal, fraudulent and misleading activities inter-alia by impersonating the plaintiff.
10. The defendant no. 2 is an individual who through fraudulent means falsely represents himself as the plaintiff’s assistant on messaging platforms such as Telegram and other similar Over-The-Top services (hereinafter the "Apps"), as well as social media platforms. The defendant no. 2 has created and operates multiple profiles under various phone numbers on these Apps and platforms and has established numerous groups impersonating the plaintiff.
11. The defendant no.3 [Telegram FZ LLC], a company having its office in UAE, is a cloud-based instant messaging and Voice-over-IP service that permits users to create profiles without verifying their identities, enabling the defendants no.1 and 2 to carry out acts of impersonation and fraud without disclosure.
12. In December 2023, the plaintiff became aware of several instances of fraudulent and unauthorized activities involving the misuse of his name, photograph, and reputation. At the time, the plaintiff discovered that various pages on social media platforms such as Facebook had emerged which were falsely and fraudulently using the plaintiff's name and photograph, purporting to offer financial services. It is averred that these actions of the defendants no.1 and 2 were carried out without the plaintiff’s consent and constituted a misrepresentation of his identity.
13. Furthermore, several groups had been created on the messaging platform WhatsApp which were fraudulently using the name "KKR" and impersonating the plaintiff. The defendant no.1 and the defendant no.2, acting as the administrators of these WhatsApp groups, had unlawfully used the plaintiff's name as their username and his photograph as their display picture. It is stated that a deepfake video was being circulated within these groups, falsely depicting him providing investment advice and misleading individuals into believing that he endorsed the groups’ activities.
14. In addition, an Instagram account had also been created at the time, fraudulently using the plaintiff's name and photograph, purporting to offer financial services to the public.
15. To address the impersonation and fraudulent activities carried out by the defendants no.1 and 2 on social media platforms and messaging services, the plaintiff, through his Advocates and KKR's legal representatives, on January 11, 2024, sent a notice to WhatsApp about two fraudulent WhatsApp groups impersonating the plaintiff and KKR, requesting their removal. Similar action was taken against two fraudulent Facebook pages, with notices sent to Meta Platforms Inc. However, only one of the Facebook pages was restricted, and no response was received from WhatsApp LLC.
16. A cease-and-desist notice dated 19th January, 2024, was sent to the defendant no.2 on WhatsApp and Telegram, to stop using the plaintiff's identity, likeness, and personality rights. Despite this, the defendant no.2 continued to falsely represent himself as the plaintiff’s assistant.
17. It is stated that the defendants’ actions constitute a clear violation of his personality rights, including unauthorized use of his name, image, and likeness, as well as misrepresentation of an association with KKR. These acts are not only infringing upon the plaintiff’s rights but are also defrauding the public by falsely claiming to provide financial advice and investment services. The defendants’ actions, carried out with mala fide intent, have caused reputational harm to the plaintiff and misled the public, necessitating legal intervention to restrain such activities.
18. Accordingly, the plaintiff filed the present suit seeking to restrain the defendants from carrying on the impersonation of the plaintiff, violating his personality rights and goodwill along with other ancillary reliefs.
PROCEEDINGS IN THE SUIT
19. On 5th February, 2024, this court granted an ex-parte ad interim injunction in favour of the plaintiff restraining the defendants no. 1 and 2 from using the name, likeness, image, photos or any other personality rights of the plaintiff and/or claiming to be associated and/or connected with the plaintiff. On the same date, the defendant no.3 along with Meta Platforms Inc, was directed to remove/ block/ delete the accounts, profiles and groups created by/ administered by the said defendants which were misusing the plaintiff’s name and his association with KKR.
20. It was further directed that should other groups, channels, or profiles of a similar nature emerge on these platforms, the plaintiff shall have the liberty to provide the relevant details or URLs to the respective social media intermediaries, who shall then take action to remove or block access to such content in accordance with applicable law. Along with the aforesaid directions, the Ministry of Electronics and Information Technology, Union of India, and the Department of Telecommunications, Ministry of Communications, Union of India, were directed to issue necessary notifications or directions to all telecom and internet service providers as well as domain name registrars in India, to permanently block, delete, or remove access to all telephone numbers, websites, domain names, and similar platforms identified as misusing the plaintiff’s name and his association with KKR.
21. In compliance with the aforesaid directions, an affidavit of compliance was filed by the defendant no.3 stating that the defendant no.3 has blocked all the impersonating accounts mentioned in paragraphs 22.[6] and 22.[7] of the order dated 5th February, 2024.
22. On 5th April, 2024, the Joint Registrar noted that there was no service report qua defendant no.2. Additionally, it was noted that the Ministry of Electronics and Department of Telecommunications, to which directions were issued by this Court, had been served, however, there was no appearance on their behalf.
23. Vide Order dated 10th July, 2024 passed by this court, the plaintiff was granted four weeks to effect service on the defendant no.2 and file an affidavit of service confirming the same.
24. In compliance with the order dated 10th July, 2024, an affidavit of service dated 14th October, 2024 was filed by the plaintiff stating that the defendant no.2 was duly served with summons through Telegram and WhatsApp on 9th
25. On 26th November, 2024 in the order passed by the Joint Registrar, it was recorded that despite being served with summons the defendant no.2 did not enter an appearance and no written statement was filed on behalf of defendant no.2. Consequently, right of the defendant no.2 to file written statement was closed.
26. Till date, none has entered appearance on behalf of defendant no.2, hence, the defendant no.2 is proceeded against ex parte.
27. Now, the plaintiff seeks a decree against the defendant no.2 in terms of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter, ‘CPC’).
28. I have heard the submissions of the learned counsel for the parties and also perused the material on record.
ANALYSIS
29. The plaint has been duly verified and is also supported by the affidavit of the plaintiff. In view of the fact that the only contesting defendant is defendant no.2 and no written statement has been filed on behalf of the defendant no.2, all the averments made in the plaint have to be taken to be admitted. Further, since no affidavit of admission/denial has been filed on behalf of the defendant no.2 in respect of the documents filed with the plaint, in terms of Rule 3 of the Delhi High Court (Original Side) Rules 2018, the same are deemed to have been admitted. Therefore, in my opinion, this suit does not merit trial and the suit is capable of being decreed in terms of Order VIII Rule 10 of CPC.
30. Based on the discussion above, it is apparent that the defendants no.1 and 2 are attempting to defraud the public by falsely claiming to offer investment advice and stock trading tips through messaging and/or social media platforms, which they claim are associated with the plaintiff and KKR.
31. The defendant no. 2, in particular, is falsely representing himself as the plaintiff's assistant on the messaging platform operated by the defendant no.3 and encouraging the individuals to join the fraudulent WhatsApp groups. These actions are clear instances of unauthorized impersonation, fraud, and exploitation of the plaintiff’s identity, causing significant harm to his reputation and misleading members of the public.
32. Furthermore, the defendant no.2 is dishonestly taking unfair advantage of the plaintiff's reputation and goodwill by impersonating him without any legitimate basis, thereby deceiving unwary consumers into believing an association with the plaintiff.
33. Clearly, the plaintiff’s name, likeness, image, photographs, and personality rights have been used by the defendants no.1 and 2 with the clear intent to defraud and deceive the public. The unauthorized actions of the defendants no.1 and 2, including the creation and operation of fraudulent Telegram and WhatsApp groups, have exploited the plaintiff's personality rights in a manner that mislead consumers and members of the trade. These actions have given rise to substantial confusion, causing individuals to falsely believe that the Impugned Facebook Pages, WhatsApp Groups, Telegram Profile, Instagram Account, and other similar accounts or platforms are authorized, associated, or affiliated with the plaintiff and KKR. Such activities aim to misrepresent and confuse the public and constitute an infringement of the plaintiff’s personality rights.
34. At this stage, it may be relevant to note that defendant no.2 did not appear before the Court, despite service of summons on 9th February, 2024 via WhatsApp and Telegram. Further, no communication on behalf of the defendant no.2 has been placed on record in respect of the allegations of the plaintiff in this suit. Hence, the right to file written statement for the defendant was closed on 26th November, 2024.
35. Since the defendant no.2 has failed to take any requisite steps to contest the present suit, despite having suffered an ad-interim injunction order, it is evident that it has no defence to put forth on merits.
RELIEF
36. In view of the foregoing analysis, a decree of permanent injunction is passed in favour of the plaintiff and against the defendants no. 1 and 2 in terms of prayer clauses 42 (a) and (b) of the plaint.
37. In respect of prayer clause 42 (c), the suit is decreed in terms of the following directions passed by this court in paragraph 24.[2] of the order dated 5th February, 2024: “Defendant No. 3/ Telegram FZ-LLC, and Meta Platforms Inc., the concerned social media platforms, are directed to remove/ block/ delete the accounts, profiles and groups delineated in Paragraphs No. 22.[6] and 22.[7] of this order, as well as all other groups and profiles created by/ administered by the said Defendants which are misusing the Plaintiff’s name and his association with KKR. In the event further groups/ channels/ profiles of a similar nature surface on such platforms, Plaintiffs are at liberty to share the concerned details/ URLs with the concerned social media intermediaries, who shall thereafter remove/ block access thereto, in accordance with law.”
38. The counsel for the plaintiff states that the prayer sought in the prayer clause 42 (f) has already been granted vide order dated 5th Accordingly, the plaintiff does not press for the relief sought in clause 42(f).
39. Counsel for the plaintiff does not press for the remaining reliefs in clauses 42 (e), (g), (h) and (i).
40. Let the decree sheet be drawn up.
41. All pending applications stand disposed of. AMIT BANSAL, J DECEMBER 5, 2024 Vivek/-