Dharampal Satyapal Sons Private Limited v. Google L.L.C. & Ors.

11. Pursuant to directions noted in paragraph No. 16 of the above-noted order, Defendant No. 1 supplied the basic subscriber information of Defendants No. 2 and 3, who are impleaded as ‘John Doe’. On 28th September, 2021, on Plaintiff’s application [I.A. No. 632/2021], Defendants No. 2 and 3 were impleaded as YouTube Channels ‘TVR’ and ‘Views NNews’, respectively.

12. Summons in the suit were issued to Defendants No. 2 and 3 on 31st October, 2022, and served on 09th November, 2022. Since they failed to appear despite service, they were proceeded ex-parte vide order dated 09th January, 2023 and the ad-interim injunction granted on 14th August, 2020 was made absolute.

13. In the above circumstances, Plaintiff seeks a summary judgement against the Defendants.

ANALYSIS AND FINDINGS

14. At the outset, Ms. Mamta Rani Jha, counsel for Defendant No. 1, informs that Defendant No. 1 – Google LLC has complied with the court directions and the impugned videos are no longer available for viewing. She adds that the impugned videos 1 and 2, uploaded on channel TVR [email ID: tvr-2908-7700@pages.plusgoogle.com] have since been taken down by the uploader themselves. As regards impugned video 3 uploaded by channel Views NNews [email ID: viewsjnews@gmail.com], Ms. Jha states that same was uploaded from the United Kingdom, and in terms of the order dated 14th August, 2020, it has been disabled for viewing in India. She further submits that Defendant No. 1 shall abide by any additional directions that the Court may issue in this regard.

15. In view of Ms. Jha’s statement, Ms. Vaishali Mittal, counsel for Plaintiff, submits that the interim order dated 14th August, 2020 may be made absolute and directions be issued to ensure that if the impugned videos resurface through the same or other channels, Defendant No. 1 would take immediate steps to block their viewing within India. In support of this submission, she relies on the obligation casted on intermediaries, such as Defendant No. 1, under Rule 4(4) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021, which reads as follows: “4. Additional due diligence to be observed by significant social media intermediary-..xxx....xxx....xxx.. (4) A significant social media intermediary shall endeavour to deploy technologybased measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this subrule[…]”

16. Adverting now to the questions of defamation, disparagement and infringement of Plaintiff’s trademark and copyright. For reference, segments of transcripts of impugned videos 1 and 3 are extracted hereinbelow: Impugned video 1: “Video Time: 0:02-0:28; Description: The video displays images of packaged spices sold under various major brands, with words like ‘Have Cow Urine’ and ‘Cow Dung’ written over the images, while the voice-over narrates that most Indian spices and products have cow urine and cow dung. Male Voice-Over: Before you go to an Indian store you should be aware that nowadays most Indian spices and products are sprinkled with cow urine and cow dung. Male Voice-Over: Authorities in Australia, Canada, EU, U.K. and the USA are alarmed by traces of cow urine and cow dung in foods, spices, cosmetics and even toothpaste that are made in India...xxx....xxx....xxx.. Male Voice-Over: Traces of cow urine and cow dung have been found in most major Indian spices, edible products along with pre-packaged sweets, desert mix and wheat flour. Impugned video 3: “Male Voice-Over: Now, it is no longer a question of whether imported Indian processed foods and edibles have cow urine and cow dung; the question is what percent of these products have cow urine and cow dung? ”

17. The impugned videos contain defamatory remarks against Plaintiff’s products, without any basis. Plaintiff has placed on record a list of ingredients contained in their products/ spices advertised in the impugned videos. They have obtained certifications from all concerned regulatory bodies and have even presented reports of an independent food analysis from a certified laboratory, which do not indicate presence of cow dung, cow urine or any other contaminants, as alleged in the impugned videos. There is no authoritative material or underlying reason or assumption for Defendants No. 2 and 3 to make false claims and disseminate fallacious information under the garb of revealing the ‘truth/facts about Indian spices’. The creators/authors have attempted to give a semblance of authenticity by displaying photographs of US FDA reports, news programmes, private studies etc., however, there is not an iota of legitimacy in such allegations as these purported reports have been skilfully created, altered and then used mischievously, in an attempt to portray that Defendants No. 2 and 3’s claims are genuine.

18. The Plaintiff has a standing in the market, as evinced by their annual sales figures, advertisement expenses etc., which is being tarnished due to the content of impugned videos. A perusal of the comments to said YouTube videos shows that members of the public are being influenced and led into believing such false statements, causing grave prejudice to Plaintiff. Considering the easy and unrestricted access, there is a high probability that the defamatory videos could be shared/ seen by a large number of unsuspecting members of the public. The Court is convinced that creation and uploading of the impugned videos by Defendants No. 2 and 3 is a deliberate attempt to defame and disparage Plaintiff’s goods bearing the CATCH mark. That apart, the said Defendants have published Plaintiff’s registered copyrights, without their consent or authorisation, thereby infringing their copyright.

19. Per the basic subscriber information received from Defendant No. 1, notice in I.A. No. 632/2021 as well as summons in the suit were served electronically on their e-mail IDs, yet, the said Defendants have consciously opted to evade contest in the present suit. In absence of any defence, Plaintiff’s claims remain uncontroverted. Defendants No. 2 and 3 have maliciously uploaded the impugned videos containing derogatory and untrue remarks against Indian spices, particularly those sold under Plaintiff’s CATCH brand, on the internet. Their malafide is further manifested by their inaction in removing the infringing content from YouTube after the Plaintiff had raised a complaint, which was duly acknowledged by Defendant No. 2.

20. In view of the foregoing discussion, the Court is convinced that present is a fit case for rendering of a summary judgement in terms of Order XIII-A of the Code of Civil Procedure, 1908 as amended by Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court Act, 2015 [“CPC”], read with Rule 27 of the Delhi High Court Intellectual Property Rights Division Rules, 2022. Further, since there is no written statement(s) on behalf of Defendants No. 2 and 3, despite service, the Court is empowered to pass a judgement in terms of Order VIII Rule 10 of CPC.

21. Consequently, I.A. No. 6533/2023 is allowed and disposed of.

22. It is directed that in the event the impugned videos 1, 2 and 3 resurface on Defendant No. 1’s YouTube platform, the Plaintiff shall be at liberty to supply the concern URLs to Defendant No. 1, who shall take appropriate action to block/ take down the same, in accordance with law. However, in case Defendant No. 1 comes to the conclusion that the content is not identical to the impugned videos which have been injuncted, they shall inform the Plaintiff of the same, within a period of one week from the date of receipt of the request, whereafter Plaintiff shall be free to take recourse to appropriate measures available under law. Qua Defendants No. 2 and 3

23. Ms. Mittal states that Plaintiff does not press for damages and only seeks the relief of decree of permanent injunction against the Defendants and award of costs.

24. In view of the foregoing discussion, the suit is decreed in favour of Plaintiff and against Defendants No. 2 and 3 in terms of paragraph No. 93(a) of the plaint.

25. Plaintiff is entitled to actual costs in terms of the Commercial Courts Act, 2015 and Delhi High Court (Original Side) Rules, 2018 read with Delhi High Court Intellectual Property Division Rules, 2022, recoverable jointly and severally from Defendants No. 2 and 3. Plaintiff shall file their bill of costs in terms of Rule 5 of Chapter XXIII of the Delhi High Court (Original Side) Rules, 2018 on or before 30th June, 2023. As and when the same is filed, the matter will be listed before the Taxing Officer for computation of costs.

26. The suit is decreed in the above terms. Decree sheet be drawn up.

27. Suit and pending applications are disposed of.