Full Text
HIGH COURT OF DELHI
Date of Decision: 04th November, 2024
SPORTA TECHNOLOGIES PVT LTD AND ANR. .....Plaintiffs
Through: Mr. Rohan Kumar Seth
(M): 8576076592 Email: litigation@fiduslawchambers.com
Through: None.
JUDGMENT
1. The present suit has been filed for permanent injunction restraining infringement of registered trademarks, passing off, infringement of copyright, rendition of accounts, damages and delivery up.
2. The case, as canvassed by the plaintiffs, is as follows: 2.[1] The present suit has been filed by the plaintiffs in relation to their registered trademarks as mentioned below: 2.[2] The defendant no. 1 is the proprietor of the domain hmriworld.com and the sub domain „dream11.hmriworld.com‟ (impugned sub-domain). The present suit has been filed on account of adoption and use of the mark 'Dream 11' as a part of its impugned sub-domain by the defendant no. 1, which amounts to infringement and passing off of the plaintiffs' Dream 11 trademarks. 2.[3] The defendant no.2 is the Domain Name Registrar (“DNR”) of the defendant no. 1's domain 'hmriworld.com'. 2.[4] Defendant no. 3 is the Department of Telecommunications (“DoT”) and defendant no. 4 is the Ministry of Electronics and Information Technology (“MeitY”), who have been impleaded as defendants for the limited purpose of ensuring compliance with the orders of this Court. 2.[5] Plaintiff no. 1 was incorporated with a view to serve as a one stop provider of a number of online fantasy sport leagues. A fantasy sport league is an online multi-player game where participants draft virtual teams of real players of a professional sport. These virtual drafted teams get points based on the performance of the players in actual games. Each player playing on the fantasy sports platform has to create a team with a maximum budget of 100 credits. The team then earns points based on real life matches and then the team competes with other such teams in the various contests offered by the plaintiffs on the platform. For each real-life match, there are multiple contests which a fantasy player can join, and each contest has an entry fee. The top teams of each contest are then rewarded monetarily. The amount earned is credited to the fantasy player's bank account upon his/her withdrawal request. 2.[6] The plaintiffs launched its hugely popular fantasy sports platform under the trademark Dream11 in 2012. Thereafter, and until the present date, the plaintiffs have been the official fantasy sports partner of the International Council of Cricket (ICC), The Campeonato Nacional de Liga de Premiera Division (La Liga), Vivo Indian Premier League (IPL), KFC Big Bash League (BBL), Hero Caribbean Premier League (CPL) T20, National Basketball Association (NBA), Vivo Pro Kabaddi League (PKL), International Hockey Federation (FIH), Hero Indian Super League (ISL) and T20 Mumbai. The plaintiff has also acquired Official partner rights of Board of Control for Cricket in India (BCCI), international and domestic matches since 2019. 2.[7] The popularity of the fantasy sports played on the plaintiffs‟ platform Dream 11 is further evidenced by the various awards won by them such as the Red Herring Global 100 Award and the Red Herring Asia 100 Award. The plaintiff no. 1 is also the first Indian gaming company to become a unicorn in the year 2019. Additionally, the plaintiffs' have also won a Guinness World Record for the 'largest online fantasy cricket match' in the year 2019, when a total of 1,03,17,928 teams were created by users on the Dream 11 platform, during the IPL final between Mumbai Indians (MI) and the Chennai Super Kings (CSK). 2.[8] The plaintiffs signed a Central Sponsorship contract with the Board of Control for Cricket in India (BCCI) for the Indian Premier League for four years starting with IPL 2019 season, which was widely publicized in the press. The plaintiffs were the title sponsors of IPL, 2020 which was played in UAE and apart from actively promoting their brand Dream11 on player jerseys and at the grounds, the plaintiffs' advertisements were broadcast in the breaks during the live matches. Apart from the above, television advertisements for Dream11 were broadcast throughout the 2019, 2020 and 2021 season of the IPL. In June, 2023, the plaintiffs became the official jersey sponsor of the Indian men's, women's and Under-19 cricket team. As a sponsor, the Dream11 logo is printed on the front of the jersey. 2.[9] The plaintiffs also have a long-term Official Fantasy Sports provider deal with the International Cricket Council for all the ICC tournaments. The said partnership also featured the ICC Men's Cricket World Cup 2019 with daily contests as well as season long fantasy league sports. Television advertisements for Dream11 were also broadcasted during the live telecast of all the World Cup matches.
2.10 As on date, the plaintiffs' mobile and online platform have over 20 crore users playing fantasy cricket football, hockey, kabaddi, baseball, handball and basketball, with more than 1,000 contests being organized on a daily basis.
2.11 Apart from the stand-alone registered trademark „Dream11‟, the plaintiffs‟ Dream 11 trademarks have a distinctive character and are capable of distinguishing the services of the plaintiffs from others. Such exclusive and extensive use of the Dream 11 trademarks by the plaintiffs has ensured that the said trademarks are associated and connected with the plaintiffs alone.
2.12 The defendant no. 1 is not only guilty of infringing the plaintiffs‟ registered trademarks, but also of passing off its identical services, as those associated, endorsed or related to the plaintiffs. Thus, the present suit has come to be filed.
3. This Court notes that vide order dated 08th January, 2024, an interim injunction was passed in favour of the plaintiffs and against the defendant no.1, in the following manner: “xxx xxx xxx
10. Accordingly, till the next date, defendant No. 1, its representatives and others acting for, and on its behalf, are restrained from using the marks “DREAM11” and in the sub-domain name „dream11.hmriworld.com‟, or any other deceptively similar variant of the Plaintiffs‟ „Dream11‟ trademarks, as a trademark, trade name, domain name, sub-domain name, as part of their email addresses or in any other manner which amounts to infringement of the Plaintiffs‟ „Dream11‟ mark.
11. Defendant No. 2 is directed to reveal the complete address and contact details of the Registrant of the domain hmriworld.com.
12. Defendant Nos. 3 and 4 (DOT and MEITY) are directed to issue a notification calling upon various internet service providers to suspend access to the sub-domain/ website of defendant No. 1 being dream11.hmriworld.com., within a period of 48 hours of receiving the copy of this order. xxx xxx xxx”
4. Subsequently, the defendant no.2, i.e., the Domain Name Registrar revealed the details of the Domain Name Registrant, and pursuant thereto, an amended Memo of Parties dated 06th March, 2024, was filed.
5. Order dated 12th August, 2024 shows that defendant no. 1 was served, via Email on 9th April, 2024. Defendant no. 1 was also served by way of ordinary means vide order dated 24th January, 2024. Further, defendant nos. 2 to 4 were served, via ordinary means on 24th January, 2024. The defendant no. 2 was additionally served, via email on 20th February, 2024. However, no written statements have been filed on behalf of the defendants, despite lapse of the statutory period.
6. Accordingly, the right to file written statements by the defendants, already stands closed. In view thereof, the defendants are proceeded exparte.
7. Learned counsel appearing for the plaintiffs submits that his main prayer is only against the defendant no.1, who has been indulging in infringing the registered trademarks of the plaintiffs and the related logos by using the defendants‟ sub-domain „dream11.hmriworld.com‟. The impugned subdomain, „dream11.hmriworld.com‟, directs to a website of the defendant NO. 1, where it is extensively using the plaintiffs‟ trademarks DREAM 11, and. In addition, the defendant no. 1 is also using the original artistic images on the impugned sub-domain, that have been created by the plaintiffs and uploaded on its Google play store and Apple App Store listings. The entire purpose of the impugned sub-domain is to direct users looking for plaintiffs‟ website, to the defendant no. 1‟s website, thereby cashing on the plaintiffs‟ goodwill and reputation.
8. Since no written statement has been filed on behalf of defendant no.1, which is the party against whom the prayer is sought in the plaint, this Court is empowered to and thus exercises its power under Order VIII Rule 10 of Code of Civil Procedure, 1908 (“CPC”).
9. This Court notes that no useful purpose shall be served in putting the matter to trial as no defense has come forward on behalf of defendant no.1.
10. Holding that the time of court should not be wasted in directing exparte evidence to be led when no written statement has come to be filed, this Court in Cross Fit LLC versus RTB Gym and Fitness Centre[1], has held as follows:
10. It is noticed that, despite service, the Defendant has chosen not to appear. As recorded in order dated 15th February, 2022, the affidavit of service dated 14th December, 2021 has been filed by the Plaintiff which shows that the Defendant has been served by speed post, as also, by email. Accordingly, the Defendant was proceeded against ex parte on the said date. In addition, it is noted that the Registry has also issued summons to the Defendant.
11. In view of the above, following the judgment in Disney Enterprises Inc. v. Balraj Muttneja [CS (OS) 3466/2012 decided on 2022 SCC OnLine Del 2788 20th February, 2014], this Court is of the opinion that no ex parte evidence would be required in this matter. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels [(2014) 210 DLT 381], as also, in United Coffee House v. Raghav Kalra [(2013) 55 PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under: “3. Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex-parte vide order dated 04.10.2013and the plaintiffs permitted to file affidavits by way of ex-parte evidence.
4. The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights Society Ltd. v. Gauhati Town Club 2013 SCC OnLine Del 382 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint.” (Emphasis Supplied)
11. On a perusal of the submissions and the documents placed on record, it is evident that the plaintiffs are the registered proprietor of the trademark “DREAM 11”. The documents on record clearly manifest that the subdomain of the defendant no. 1 fully subsumes the plaintiffs‟ registered „Dream 11‟ trademark. The defendant no. 1 has added the plaintiffs‟ registered trademark in its domain „hmriworld.com‟ as a sub-domain, to make it „dream11hmriworld.com‟. Thus, the defendant no. 1 is attracting users to its „hmriworld‟ platform, through its impugned sub-domain, which is an act of infringement of the plaintiffs‟ „Dream 11‟ trademarks. The acts of the defendants are likely to result in initial interest confusion on the part of the consumers, which is classified as a form of passing off. The impugned sub-domain leads to a website that purports to be a digital marketing and website development agency. Therefore, the defendant no. 1 is fully aware of the consequences and benefits of pre-pending the plaintiffs‟ „Dream 11‟ trademark as a sub-domain to its main website, and is doing so consciously to generate traffic on its own website.
12. Thus, it is evident that there is likelihood that the present and future members of the relevant class of consumers, will be misled that the defendant no.1 is associated/affiliated with the plaintiffs and the services provided by them are in furtherance of that of the plaintiffs.
13. This Court further notes that the defendant no.1, despite service has failed to contest the case by not filing a written statement and no plausible defense has been taken by defendant no.1.
14. Thus, holding that Courts can invoke the provisions of Order VIII Rule 10 CPC, to curb dilatory tactics by the defendants in not filing the written statement and pronounce judgment against the defendants, a Coordinate Bench of this Court, in Nirog Pharma Pvt. Ltd. versus Umesh Gupta & Anr.2, has held as follows:
11. Order VIII Rule 10 has been inserted by the legislature to expedite the process of justice. The courts can invoke its provisions to curb dilatory tactic, often resorted to by defendants, by not filing the written statement by pronouncing judgment against it. At the same time, the courts must be cautious and judge the contents of the plaint and documents on record as being of an unimpeachable 2016 SCC OnLine Del 5961 character, not requiring any evidence to be led to prove its contents. The Supreme Court in C.N Ramappa Gowda v. C.C. Chandregowda, (2012) 5 SCC 265 had held as under: “25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect [Ed.: It would seem that it is the purpose of the procedure contemplated under Order 8 Rule 10 CPC upon non-filing of the written statement to expedite the trial and not penalise the defendant.] of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order
8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.
26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceedings which hardly promotes the cause of speedy trial.
27. However, if the court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.” xxx xxx xxx
28. The present suit is also a commercial suit within the definition of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the courts should invoke the provisions of Order VIII Rule 10 to decree such cases.
15. Accordingly, decree is passed in favour of the plaintiffs and against the defendant no. 1 in terms of Paragraph 42 (a) to (d).
16. Considering the submissions made before this Court and the documents placed on record, this Court is of the view that the ends of justice shall be met if cost of ₹ 1,00,000/- is imposed upon the defendant no. 1.
17. Accordingly, the defendant no. 1 shall pay a cost of ₹ 1,00,000/- to the plaintiffs within a period of six weeks from today.
18. Suit is decreed in the aforesaid terms. Registry is directed to draw up the decree sheet.
19. With the aforesaid directions, the present suit, along with pending application stands disposed of. MINI PUSHKARNA, J NOVEMBER 4, 2024 c