Full Text
HIGH COURT OF DELHI
JUDGMENT
PATANJALI AYURVED LTD ..... Appellant
Through: Mr. Zoya Junaid, Mr. Pullit Gupta, Mr. Umang Verma and
Mr. A. Dutta, Advs.
Through: Ms. Mamta R. Jha, Mr. Rohan Ahuja and Ms. Shruttima Ehera, Advs. for R-2/Google
LLC
Mr. Deepak Gogia and Mr. Aadhar Nautiyal, Advs. for R-
3/X Corp.
1. The present order shall decide an appeal preferred by the appellant/plaintiff under Order XLIII Rule 1 r/w Section 106 of the Civil Procedure Code, 1908[1] as amended upto date, assailing the impugned order dated 28.07.2023 passed by the learned Trial Court whereby the plaint has been returned purportedly in exercise of powers under Order VII Rule 10 CPC. 1 CPC
2. Shorn of unnecessary details, appellant/plaintiff is stated to be a company incorporated under the Company Act, 1956 and it is stated to be engaged in manufacturing and distribution of various healthcare products throughout India as well as abroad using its registered trademark „PATANJALI‟.
3. The grievance of the appellant/plaintiff is that a video has been uploaded by respondent no.4/defendant no.4 on the internet platforms management and controlled by respondent nos. 1 to 3 and 5. Suffice to state that the alleged video is an advertisement of mens‟ undergarment, wherein appellant‟s/plaintiff‟s trademark alongwith pictures of its brand ambassadors and directors are shown used unauthorizedly.
4. It is further the grievance of the plaintiff/appellant that although there is no information available about respondent no.4/defendant no.4, who supposedly uploaded the said video, however, the video is being displayed on the internet platform of defendant no.5/Youtube LLC providing access to view the said video to internet users, and thereby is generating revenues for them.
5. It is the case of the appellant/plaintiff that respondents/ defendants are violating its statutory and common law rights to use its registered trademark „PATANJALI‟ exclusive to appellant/plaintiff. It would be apposite to extract the relevant paragraphs from the plaint which are as follows:- "1.......It is further stated that by allowing the Uploading/sharing/dissemination of the impugned videos/URLs/ Weblinks by the defendants is clearly in breach/violation of the statutory and common law rights of the plaintiff in its traden1a[1] “PATANJALI'' and is causing losses to the sales of the Plaintiff......
13. c )..:... It is stated that the trademark of the Plaintiff has been falsely associated with the offending product whereas the Plaintiff does not manufacture or offer for sale any kind of undergarments...........
13. i).......... Further, the said impugned videos at various links on the portal of the Defendant No.3 are displaying advertisements thereby showing that the Defendant no.3 is also generating and earning revenue through such advertisements. 13.k) That moreover, the contents of the impugned videos/URLs/Weblinks are not only crass, vulgar, misleading and per se defamatory, but are aimed to prejudicially affect the reputation of the Plaintiff and further to stir a controversy in order to gamer publicity for the impugned videos....... 13.1)...... The creators of the defamatory video has attempted to demean the Plaintiff and have illegally used the trademark and name of the Plaintiff being ''PATANJALI" without any intimation or authorization to the Plaintiff....... 13.1)..... The false and defamatory videos have been created, uploaded and circulated with the sole intention of creating confusion in mind of general public and ridiculing the Plaintiff without any cause …....... "
6. It appears that summons of the suit were issued to the respondents, except for respondent no. 4, who put their appearance and the offending video in question was played in the Trial Court on 19.10.2022. The learned Trial Court on considering the aforesaid averments as also the content of the offending video held as under:-
7. Learned counsel for the appellant has urged that the learned Trial Court has committed grave error in holding that the suit is of commercial nature and invited the attention of the Court to the definition of „Commercial Dispute‟ as given in Section 2 (c) (xvii) of the Commercial Courts Act, 2015[2]. It was vehemently urged that the appellant/plaintiff is aggrieved since the offending video is not only infringing their trademark, but also defamatory and disparaging in nature towards its brand ambassadors. Relief of compensation is also claimed for purported defamation.
8. Per-contra, learned counsel for the respondents nos. 1,2,[3] and 5 urged that no proceedings can be brought against them as they are simply „intermediary‟ in terms of the Section 2(w) of the Information and Technology Act, 2000[3] and are exempted from any liability in terms Section 79 of the said Act.
9. Having heard learned counsels for the parties, at the outset the impugned order dated 28.07.2023 passed by the learned Trial court cannot be sustained.
10. It will be relevant to reproduce relevant provisions of CPC:- Order VII Rule 10 CPC
11. On a careful perusal of the aforesaid provision in the C.P.C., reverting to the instant matter, it is but evident that the learned Trial Court did not follow the mandate provided under Order VII Rule 10A(1) of the CPC. Incidentally, it was urged by learned counsels for the parties from both sides that the learned Trial Court never invited any query from them with regard to application, if any, of the CC Act and that the impugned order has been passed suo motu without hearing them on the above-mentioned ground. Since the amended Rule 10A to Order VII CPC was not followed, the impugned order cannot be sustained.
12. Learned counsel for the respondents also urged that there is no cause of action in favour of the appellant/plaintiff so as to institute any suit against them, which ought to be rejected under Order VII Rule 11(a) CPC. It was further urged that the offensive video is by all means a case of an innocuous parody which neither disparages the trademark of the appellant/plaintiff nor in any manner results in defamation. It is further urged that they are not making any financial gains as such and rather such video would otherwise be protected in exercise of fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
13. In view of the aforesaid discussions, the appeal is allowed and the learned Trial Court is directed to hear the parties afresh and decide the issues involved in the suit afresh after hearing the parties. The parties shall appear before the learned Trial Court for hearing on 01.12.2023. This order is without prejudice to the rights and contentions of the parties. Pending applications, if any, stand disposed of.
DHARMESH SHARMA, J. NOVEMBER 07, 2023