Allowed

M/s Unik Industries v. M/s Amazon India Ltd. and 7 Others

Telangana HC11 Apr 2023CMA/404/2020

Case brief

AI extract

What is this about?

High Court held that Amazon India Ltd., as an online marketplace, qualifies as an intermediary under Section 79(2) and (3) of the IT Act, 2000. Due to lack of evidence showing active participation in the sale and respondent's undertaking to remove links, the appeal for interim injunction was admitted but merits were not decided. Trial Court directed to expedite main suit.

What did the court decide?

Appeal disposed; trial court directed to dispose of main suit expediently; respondent undertook to remove URLs within 36 hours.

M/s Unik Industries Vs M/s Amazon India Ltd. and 7… — Intellectual Property | Telangana HC (2023)

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[³²⁵⁸ ]

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IN THE I-IIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD

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TUESDAY, THE ELEVENTH^{DAYOF APRIL} TWO THOUSAND AND TWENTYTHREE

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVARAO^NAIDU

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ctvtL Mts CELLANEOUS APPEAL NO:^{404 OF 2O2O}

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Appeal Under Order Xllll Rule 1 of^{C.P.C againstthe Order andDecree} dated 08/06/2020 made in l.A. No.^{3387 of 2018on the file of the Court of the lll} Additional Chief Judge, City Civil Court, Hyderabad.

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Between:

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M/s Unik lndustries, a Proprietary firm,^Rep. by^{its Prop-Mr. M. Purushotham,} S/o Mr. M. Manik Rao, Aged 46^years, Occ. Business,^{having its office at No.} 1-2-55713018, Lower Tank Bund,^{Hyderabad -} 500080.

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...APPELLANT

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AND

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M/s Amazon lndia Ltd., 2nd Floor, Safina^{Towers, Opp.J.P. Nagar, Telco} Park, No.3, Ali Askar Road, Bangalore^{- 560052.}

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M/S Celebration No.2, Arun^Nagar, 3rd^{Cross Street,Vadavalli, Coimbatore -} 641O41, Tamilnadu.

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M/s S.K. Traders, Door No.^{17lA, VinayaknagarStreet,Venkatesh Nagar,} Near Sali Gramam. Bustarminal, Virungabakkam,^{Chennai - 600092.}

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M/s EASY DRY, Shop No.8, Sankala Arcade,^{Opp. Telephone Exchange,} Karve Road, Pune 41¹ 038.

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M/s FLYING HANGER,^Corporate Office,^{5/1, 2ndCross, 2nd Main,R.V.} Shetty Layout, Sheshadripuram,^{Bangalore- 560020.}

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M/s J.V. BROTHERS,^No. 811,^{10A Main,Suit No.639, First Floor, lndira} Nagar, Bangalore - 560038, Karnataka.

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M/s N. R. INDUSTRIES,^Adarsh Nagar,^{Plot No.266,267, NearUMCC, lDA,} Jeedimetla, Hyderabad - 500055.

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M/s ZIGMA APPERAL lNDlA,^{Door No.56, BlockA, Flatted Factory Complex,} Jhandewalan, Near Jhandewalan^{Mandir,New Delhi -11 0055.}

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(R-2 to R-8 are not necessary^party as the impugned order dated^08lOGl202O iassed^{by the court belowagainst R-2 to R-8 is not being question in this} appeal)

...RESPONDENTS

[':1^, '

lA NO: 2 OF 2020

Petition under Section 151 CPC^praying that^{in the circumstances stated} in the affidavit filed in support^{of the petition,the High Court may be pleased to} suspend the operation of^{the order dated 08/06/2020 passed in lA No. 3387of} 2018 in OS No. 929^{of 2018 against RespondentNo. 1 by the Honourablelll} Additional Chief Judge,^{City CivilCourt at Hyderabad.}

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A NO: 3 OF 2020

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Petition under Order 39 Rule^{1 of Code of Civil Procedure praying that in} the circumstances^{statedin the affidavitfiled here in in the High Court may be} pleased to grant interim injunction^{restraining the respondentNo. 1 from} infringing the design of^{Unik "Clothing Hanger" underand covered by the Design} patent Application Nos. 276541 and 27 6542 by dealing with the products of respondent Nos. 2 to^{8 by displayng them in their online portal www.amazon in} for advertisement and^{sale, using promoting, offeringfor sale, sellingor dealing} in any manner whatsoever^{with such similarclothing hangerproducts} manufictured under or^{identical to or similar to the said designsincluding} blocking removing or^{deletingfrom their said online portal advertisementsand} display of the said^{productsand the literalcontentsand imagesof thereof} pending disposal of the above Civi^{lvliscellaneous Appeal-}

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Counsel for the Appellant:^{SRISANDEEP KUMARCHAKRABORW}

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Counsel for the Respondent^{No.1:SRITHOOM SRINIVAS}

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The Court delivered the^{following:JUDGMENT}

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THE HON'BLE SRI JUSTICE SAMBASIVA^{RAO NAIDU}

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CIVI L MISCELLANEOUS APPEAL No.4O4^OF 2O2O

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JUDGMENT:

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This Civil Miscellaneous Appeal has been Iiled by the appellant under Order 43 Rule 1 C.P.C. against the orders in I.A. No. 3387 of 2018 in O.S.No.929 of 2018 on the^fiie of III Additional Chief Judge, City Civil Court,^Hyderabad (hereinafter be referred to as trial Court) dated 08.06.2O2O, The appellant has filed O.S.No.929 of 2OI8 before the trial Court against 8 defendants seeking permanent injunction to restrain the passing off actions ald infringing the product of the appellant known as unik cloth hanger. They have filcd LA. No. 3387 of 201B under order 39 Rule 1 ald 2 CPC and sought for temporar5i injunction against a1l the respondents, their agents etc., from infringing^the design^of "Unik Clothing Hanger" under application^{No.276541 and} 276542 by using, manufacturing, selling,^{offeringfor sale} of their product. Out of eight (8) respondents,^respondent No.2 to B remained exparte. But, respondent^No.1 contested the said application. The trial Court^having

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cMA No.4O4^{oJ 2O2O}

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considered the oral arguments of both parties and documents marked by the petitioner vide Ex.Pl to P73, allowed the interlocuton, appl cation against respondent Nos.2 to 8, but dismissed the petition against the^1"t re spondent

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Being aggrieved b1, the said dismissal, the appellant has filed the present appeal on the following^grounds:

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The order in LA.No,3387 of 2Ol8^passed by the trial Court absolving 1"t respondent from being put under rnjunction is contra4' 10 the evidence on record and law The Court below ought to have seen that l"t^respondent or cannot be given blanket and absolute immunity exemption from liabiiitr,. merely on a claim of being^an intermediary under the provisions of Section 79 of the Information Technologr Act 2000, as has been done in the instart case, when rt is found that the conduct of^1"t respondent online portal,/ platform who is supposed to act as a mere conduit betureen the seller ald^purchaser retaining a neutral and passive pogition in the entire sale process, but acted as active participant in the sale of

i 1.

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?:)

infringed product, thereby^{not entitled to any protection} uls 79 of the Information^{Technolory Act, 2000. The} appellant has claimed that^{the Court below ought to have} seen that lst respondent^{was not a passive or inactive, but} an active participant in^{the whole sale processof the} deceptively similar, duplicate, counterfeit^{and infringing} product, sold by respondent No. s 2 to^{B which are} identical to the patented^product ald^{design of the} appellant known as "Unik Clothing^{Hanger" registeredas} design No.276542-D/F-16 under^{Clause06-08underthe} design patent application No.276542^{dated I0-10-2015} issued and registered under the^{Design Act 2000 by the} Controller General of Patents.

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The appellant has further claimed^{that the Court} below ought to have seen that^{even though respondents2} to B have registered^{themselvesin the online portal of} respondent No.1, namely^{www.amazon.in,the conduct of} respondent No.1 shows that^{instead of remaining neutral} and inactive, it has actively^{assisted,aided, abetted,} promoted, induced, transpired,^{contributed and caused the}

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sale of the duplicate product. The appellant has claimed that 1st respondent allou,ed the online portal for sa-le of infringed product bv giving publicity after obtaining a simple letter from respondent Nos.2 to B to the elfect that the l"t resprtndent woulcl not be liable in the event of any dispute arisrng in futur.-.

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They have aiso claimed that Exs. P3B to P50 show,s that respondent No.1 hosted the sale of products of other respondents in their online portal, thereby allowed the sale of the deceptively sirntlar, duplicated and counterfeit products manufactured tr_r, rs5penalent Nos.2 to B by way of publication of literal contents and images, which are similar to the patented design of the appellalt. The 1"r respondent gave advert.isement ald promoted the sale of products ald also accepted the purchase orders pertaining to the said product booked by the customers. The l"t respondent stored the goods in their godown, raised invoices for sale of the product, transported ancl delivered the product by their ou,n employees.,

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.Ar

Therefore, according to the appellant, there^{was ai1} active participation of^{1"t respondent in the alleged passing} off, but the trial Court ignored ali^{these facts ald} dismissed their application against l"t^{respondent.They} have aiso claimed that in^view of the subsisting^principle and agent relationship as exhibited by^{the conductbetween} l"t respondent and respondent Nos.2^to 8, it^shows that^1"t respondent actively involved in the^business, but the^Court below failed to see this aspect and dismissed their application.

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The appellant further claimed that the l"t respondent abetted the sale of infringed product by^{providingaid for} the sale of the product and^{allowed respondentNos.2 to 8} to use the online market portal of l"t respondent^{as a} platform for the sale of products of the^remaining respondents. Therefore, the trial Court ought^{to haveseen} that the acts of l"t respondent also^{affectedtheir business} and caused^potential harm.^{The appellant has claimed that} it is impossible^{for a proprietorof a patentor a copyright or} trademark holders to^{verify the authenticity or exercise}

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quality con trol ovcr I h e grey market product infringing their intellectual property right beside the possibility of passing of l-he serrrices rendered by wrongdoers as that of the rightful owner and proprietors of the intellectual property rights holders. lt is impossible to enforce any damages au,arded against such wrongdoers as it is easy for such operal-ors to hide behind the veil of unanimity which the internet provides. As such, where services are tendered through the domain name of the service provider or an intermediary in the internet as 1"r respondent uras doing, a very high alert whistlt: is to be necessarily exercised by them and a strict vieu. is to be taken for its easy access under which any one from any corner of the globe can access and rhe failure on the part of the intermediary to be on alert and take steps to curb the menace by taking suitable action by disabling or blocking the contents of grey-market products manufactured from using the online portal/ platform/ computer resource for which they have technical capability upon receipt information or of the same being brought to their knowledge would amount to not exercising due diligotce on their part, disentitling them

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from the exemption afforded to them under Section 79 of lnformation Technologr Act

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Therefore, according to the appeliant, there was active participation of l"t respondent in the sale of infringed products manufactured by respondent Nos.2 to 8, thereby the Court below ought to have a-llowed their application and granted temporary injunction against l"t respondent also

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As could be seen from the impugned order, while filing the said interlocutory application the appellant had filed the a-ffidavit of their authorized signatory and claimed that it is a sole proprietary firm commenced its business in 20 i 0 and is a well-known concern ald recognized for creating new designs in the field of production of industrial and domestic usage products. It has been promoting its business regionally by rvay of developing and creating products with new design by applying novel technologr and acquired an impeccable reputation. The appellant in the course of promoting its business during 2015 invented two products of clothing hanger with unique design and they

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have become popular and it has been named as^,,Unik Clothing Hanger". It is a device consisting two cloth drying ceiling mounting clamps which are made of plastic or steel rods, nylon ropes, be11s, wa1l stopper, anchor, screws and washers. The key components are cloth drying ceiling mounting r:lamps in Unik Design of Cloth Hanger. The appellan-t has claimed that as the Unik Design of Cloth Hanger rvas drar.ving massive attention in the market for its qua-lity and novelty, in order to acquire statutory protection in addition to common law rights, the appellant has applied for registration of patent for such unique design under the Industrial Designs Act, 2000 ald obtained application No.27654 1 and 276542. It is accepted and publicized by the Office of Controlier General of patent Design, the patent ofhce at Kolkatta in their General No.O4/2017, dated 27.01.2Ot7. Tlne patenr authorities have inspected the device alrd upon satisfaction of the design, patent has been granted ald it has been registered by the design No.276542-DlF-16 under Class 06-0g titied as "Clothing Hanger,,. The said patent has appealed to every sector of its cor]sumer, either by its name or

CMA No.4O4 oJ 2O2O

.{\

distinctive design and has^{becomewell-known design in} the mind of each and^{every sector of people. Therefore, the} appeilant has claimed that^{they are owners of the patentof} said Clothing Hanger and^{suchdesign carr be used by the} appellant only ald no one can be permitted to^passing off the product or allowed to use it in any manner by other parties.

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The appellant has also stated that their patented clothing hanger has become popular, received great response ald sales in the market for its great quality and earned goodwill, thereby got distinctive and exclusively associated to the appellant. In order to develop its business all over India, the appellant spent substantial amount to popularize its product. The appellant has acquired substantial market size for the invention. The appellant furnished the details of expenditure for the advertisements for the year 2015-16 to 2018-19 and also turnover of the sales for that period. The appellant has claimed that it has got exclusive statutory right on the product and very much concerned^. about their design on the rights and taking

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steps to prevent 3.a parttes from infringing or passing of their design patent.

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The appellant fur-ther stated that during Ju1y, 201g they starteci receivlng r:omplaints from their consumers on the quality of clothing l-rangers and when they enquired about the salne, it came to their knowledge that respondent,/ defendants u.ho are located in various parts ol the country have joined hand in glove collectively and by misusing through online shopping portal namely M/s. Amazon India Limitecl (re spondent No.1) b5r manufacturing, offering ancl conducting serles, marketing the products of respondents by directl-r, replicating their cloth hanger. Therefore, l.he respondents replicated the Unik Clothing Hanger, ceiling mounting clamps and assembled with other generic things and published images and literal content on different brand narn('s without any authorization by registering Lhe same in the Amazon Seller Central under home improvement catcgory by .Just hsting them in the online portal. But, thel rnanufacturpd substandard quality of goods and making irreparable loss to their clothing

CMA No.4O4 oJ 2O2O

I I

harger. The appellant^{has claimed that the onlineportal of} 1"t respondent directly and^{indirectly involved for making} infringement by way of^{publishingIiteral contentarrd} images under a different^{category without any authentic} verification of brand licenses, but simply^{provided their} platform for sale of unauthorized^product.

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The appellant has alleged that the main object^{of the} respondent is to earn commission and^{gaining the profiton} the sales. The l*t respondent is the co-partner^and allowed the sa,1e of product by the other respondents,^{thereby liable} for causing infringement and further a-lleged that the respondents/defendants promoted an identical,^deceptively similar Unik Design of Clothing Hanger on^identical substandard products as that of the^product of^appellant herein, to create confusion in the minds of consumers.^The sale of identical product with the Unik^{Design of Clothing} Hanger is only to defraud the appellant and to^{encash the} goodwill and reputation earned by the appeliant through its hard work and great efforts. The appellant^while extracting the relevant^{provisionsof Patent Design Act, has}

CMA No.4O4 oJ 2O2O

claimed that the acts of 1"r respondent and remaining respondents caused irreparable 1oss, thereby sought for temporarl :njunction t o restraining the respondents, their agents etc., from causing loss and by sale of infringed products.

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Out of B respondents, respondent Nos.2 to B remained exparte. They did not file any counter. However, respondent No.1 appeared before the trial Court through its counse L and filed counter affidavit through their corporate counsel. As per the counter filed by 1"r respondent, it i,r,as therr specific case that the petition filed by the appellant claiming infringement and passing off of its registered design Nc:276542 and,2Z654l acts of unfair competition and dilution arising out of the sale or olfer for sa.le of allegedly replicated/copied/duplicated products by respondent Nos.2 to B on 1"r respondent,s website. But, the suit against respondent No.1 is entirely misplaced and untenable under law,. 'l'he I "r respondent has claimed that Amazon India Limited l-ras been wlongly implicated as 1"t respondent. Since the suit is in respect of an alleged

CMA No.4O4 oJ 2O2O

infringing product on the online platform^{www.amazon.in} the entity which owns and operates by^{Amazonwith its} registered office at Brigade Gateway,^Bargalore, 15a company incorporated in the year 2010. 1"t respondent is the ovvner and operator of the online market place which is the largest market place in India where thousands of sellers and buyers interact and transact. The customers by using 1st respondent online market place can choose from a range close to 1070 million products provided by more than 48500 registered sellers across broad range of categories including books, computers, accessories, mobiles etc. The 1"t respondent has claimed that its business is neither similar nor in competition with appellant business or services. While disputing the other allegations of the appellant with regard to the collusion between respondent No.1 and respondent Nos.2 to 8 and about malafide intention, 1"t respondent has claimed that the petitioner has wrongly placed respondent No. I in the same category as respondent Nos.2 to 8.

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While disputing the other allegations of the aflidavit filed in support of the application, this respondent has claimed that in vierrr, of the provisions of Information Technology Act, 2000 rvhere under an intermediary is defined as " any person uho on behalf of another person receiues, stores or tran.snits that record or prouid-es ang seruice u..tith respect to that record and includes online market places. The J., respondent merely provides a market plar:e, where buyers ar-rd sellers may interact and transact, ltut does not actively participate in the transactions that occurred on the market place. 1", respondent does not itse lf manufacture, procure, list, price or sel1 the goods madr: available on its market p1ace. The mere displery of the impugned products or images and literal content related thr:reto. does not amount to adoption or use of the design by respondent No.1. The 1"r respondent being ar-r online market place is thus an intermediarv as d efined ir-r Section 2 ( 1 )(w) of Information Technolog, Act, 2000. The 1"t respondent further claimed that as per Section 79 of Information Technologz Act, 20O0, they a.re entitled to:rn exemption which is subject to

CMA No.4O4 of 2O2O

the conditions laid in Section 79 (2) 79 (3) and 79 (21(b) of the sard Act. The 1"t respondent has claimed that they are no way related with the manufacture, sale of the a-lleged infringed product, but they provided market place to buSzers and sellers and since they are under the category of intermediary, they are not liable of any passing of action and sought for dismissal of the appeal.

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The trial Court having considered the arguments of both parties and Exs.Pl to P73, allowed the petition against respondent Nos.2 to B, but dismissed the same against l"t respondent and against the said dismissal the present appeal has been filed

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Heard both parties.

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Now the point for consideration is:

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Whether the trial Court failed to appreciate the contentions of the appellant and committed wrong in dismissing th-e petition against the l.t respondent? If so, whether the order is liable to be set aside? And uhetlrcr the appellant ls entitled to temporary injunction ag ainst 7 "t re spondent?

CMA No.4O4 of 2O2O

While filing the prcsent appeal, though the remainir.rg respondents are shou,n in the cause title, the appellant has categorically stated that they are not necessary parties to the appeal. Therefore, the contest in the present appeal is confined to lst respondent alone.

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POINT:

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The main claim of appellant herein is that they have invented a device for dn,ing the cloths and named it as "Unik Clothing Hanger" and having spent so much of money on advertising, rr-rade the product popular ald could increase their turnover during 2015-16 to 2018-19. But during Julv, 20 1B thc1, 1ss.ir.d compiaints from the consumers about the inferior quaiity of the clothing hanger, thereby tl-rey caused enquiry and came to know that some people from various parts of the country started manufacturing similar devices ald offering the same through online market place namely Amazbn i.e. 1"r respondent. But, none of them have obtained the consent of the appellant herein lor manufqcturing and for sale of similar product. Therefore by showing those manufacture

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as R2 to R8 the appellant has filed the main suit^for perpetual injunction and filed the above stated interlocutory application for temporary injunction during the pendency of the suit.

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The contesting respondent denied the claim of IS appellant and the main contention of respondent No.¹ they are only intermediary, being online sale portal, it is not a necessary party to the case and sought for dismissal of the application

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It is not the case of the appellant that 1"t respondent committed the said infringement, nor it is the case of the appellant that respondent No.l has been manufacturing the identical product and placing the said product for sale on its online portal. Even as per the contention of the appellant, it is claimed that the 1"t respondent allowed the other respondents to place the products which they said to have manufactured by way of passing off. The^I "t respondent has denied the material averments of the affid avit filed by the appellant and^claimed that it is^only arl intermediary but not a manufacturer.^Even as^{per the}

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notlces exchansed 5ot\ een the appellant aJ1d 1 "r respondent. it rvas the spCCific contention of 1st respondent that it is only an interntcdrary.

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It is true as per tl-re provisions under Sectron 79 of Information Technologr Act, 2OOO, subject to the provisior-rs of Sub Section 2 and Sub Section 3 of the said Section, ar't interrn.edianl shalL not be made liable for anA 3,d partA informatiott, doto or communication link mad_e auailable or hosted bg them. Therefore, the intermediary "shall not be made liablc ior aly such passing off action subject to the provisions of Sub Section 2 ar.d 3 of Section of 79 of Information Technologz Act, 2000.,,

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Section of 79 of lirlbrmation Technology Act, 2000 reads as follows

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"Notutithstandittg angthing contained in ang lau .for the time beinq in fore.:r' lxtt subject to the prouisions of sub-sectlon.s (2) and i.i). qn intermediary shatt not be liable for ang thircl paftg information, data, or communication link rnade auailable or hosted bg him."

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:^t-r_::;:

The term 'lntermediary' is defined in broad terms in the Information Technolo5/ Act, 2000. Section 2(1)(w) of the Information Technologr Act 2OOO defines an intermediary as a person who receives, stores or transmits any electronic record and provides any service relating to such record on the behalf of another person. Intermediary includes network service providers, telecom service providers, internet service providers, search engines, webhosting servlce providers, online-auction sites, online payment sites, online-marketplaces and cyber cafes

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Therefore, the function of Intermediar5r 1S hosting content, collecting information and evaluating information, facilitating the communication and exchange of information and facilitating the use of internet. An intermediarJz never creates any information but receives stores and transmits the information created by third parties. Therefore an intermediary is only a middleman between the creator of a product and its user

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ln a judgmenl ltetr,rreen^.,Amazon Seller Seruices

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Pttt. Ltd, a, Amwag India Enterprises pvt, Ltd. and. Ors,, Lreported rt 2O2O SC(t Online Del 454 the l{igh Court at Delhi held that there is no distinction betn,een passive ald active intermediaries so far as the availability of the safe harbour provisions is c:oncerned and an intermediary shall not be liable for ar-n' third-party information, data or communication link macle available or posted b5.- it, as long as it complies with Secr ions 79 (2) or (3) of the IT Act.

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As could be seen lrom Section of 79 of Information Technologr Act, 2000 a1d in view of the contention of appellant that 1st respondent is entitled to immunity under section 79, subject to the conditions shou,n in the sub, sections 2 and 3 of the said section. Therefore the 1"t Respondent has to estabhsh that it is onll- intermediary and complie'd Section 79 (2) and (3) of Information and Technolog' ,A,ct, 2000.^'lhe appellar.rt has claimed that 1"t respondent^js not a passi',.e or inactive participant, but an active participant in thc entire sale process of deceptively

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'^{2020SCC OnlineDet 454}

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similar, duplicate and infringing^{product. Exceptthe} averments made in the^{affidavitfiled in supportof petition} and lega-l notices exchanged between the^parties, absolutely there is no other material^{to believe that l"t} respondent is actively engaged in the manufacture^{ar-rd sale} of infringed article. As could be seen from the entire record, expect alleging that the 1"t respondent allowed the other respondents to place their products lor sale on its online shopping market, the appellant did not^place aly material before this Court to show that l"t respondent after being informed about the placing of alleged infringed article by the other respondents, 1"t respondent still continued the sale, without removing the URL of that particular product. Even though it is alleged in the grounds that 1"t respondent was actively assisting, abetted, promoted the sale of infringed article and induced the customers to buy such product, the appellant could not place any material in support of this specific contention. The 1"t respondent being intermediary might have allowed the other respondents to offer their products for sale. But, there is no material to believe that l"t respondent has got aly

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-..,.^{-.:'t&::{r.tflia_'_:}

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intention to sell the infringed articles and it has promoted such sale by other respondents.

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27 . During the pe ndenc_y of present appeal, l "t respondent has filed a memo before the Court stating that 1"t respondent u,i1l remove the URL of the infringecl product identified by the appellant, within 36 hours of receipt of a communication from the appellant.

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In a judgment between Shrega Singhal us tlnion of India2, the Honble Apex Court was pleased to observe that Section 79 is valid subject to Section 79 (3Xb) being reacl down to mean that the intermediary upon receiving actual knowledge that a Court order has been passed asking it to expeditiously remove or disable access to certarn material, or on being notified by the appropriate Government or its agency that. unlawful acts relatable to Articl e 19 (2) are going to be committed then fails to expeditiously remove or disable access to such material.

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Section 79 (B) has ro tre read ,down to mean that the intermedian- upon receiving actual knowledge that a Court , AIR 2015 SC 1523

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a'7

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order has been passed asking it to expediently remove or disable access to certain materia] must then failed^to expediently remove or disable access to that material.^This is for that reason that otherwise it would be very difficult for the intermediaries like Google, Facebook etc., to act when millions of requests are made and the intermediary is then to judge as to which of such request are legitimate and which are not.

¶148

As per the affidavit filed in support of the injunction petition and other documents, the appellant may ciaim that l^st respondent has allowed sale of such infringed products. But, unless there is oral and acceptable evidence, it cannot be said that the first respondent encouraged the sa,le of infringed goods or abetted the passing off by the other respondents. No information or evidence has been placed by the appellant to believe that 1st respondent has involved in the provocation, sale etc., of passing of goods. As already stated l"t respondent has filed a memo through counsel and agreed to remove the

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URL in respect of such article within 36 hours of receipt of the said information from the appellant.

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It seems in their reply vide Ex.P67 also 1"t respondent had informr:d that appellant herein is only a neutral online market place and it is onlv intermediary and its clients and buyers and sellers carn out their transactiou. Therelore, in the absence of anJ. proof that 1"t respondent is manufacturing or selling infringed articles, more particularly ln the light of the undertaking given through their counsel, the appellant is not entitled^r.o an ad-interim injunction against 1"t respondent. The appellant/ petitioner could not makc out pima facie case against the respondent No.1 to seek temporary injunction. The remaining contentions and grounds can be considered only after the parties adduce their respective evidence. Therefore, the balance of convenience is also not in favour of the appellant. Therefor-e, the trial court rightly dismissed the request of appellant for injunction against the 1"t respondent; as such the appeal is,liable to be dismissed. However, in vieu,' of th e undertaking given by respondent

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No. 1, the same cart be made as part of the record, and the present Civil Miscellaneous Appeal is iiable to be disposed directing the trial Court to dispose of the main suit expediently. Accordingly, the appeal is disposed with a specific direction to the trial Court to dispose the main suit expediently.

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32 . In the result, the Civil Miscellan eous Appeal 1S allou,ed

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As a sequel, pending Ivliscellaneous Applications, if

¶158

any, shall stand closed.

¶159

//TRUE COPY//

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SD/. B.S,CHIRANJEEVI JOINT REGISTRAR L1D SECTION OFFICER

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To,

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'l . The Ill Additional Chief Judge, City Civil Court, Hyderabad 2. OneCCtoSRl SANDEEP KUMARCHAKRABORTY, Advocate[OPUC] 3. One CC to SRI THOOM SRINIVAS, Advocate [OPUC] 4. Two CD Copies BN

HIGH COURT

DATED:1 110412023

JUDGMENT

CMA.No.404 of 2020

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