Delhi High Court: Flipkart (‘defendant’) was sued by V Traditions (‘plaintiff’) for infringing its mark by allowing third party sellers to latch on to the plaintiff product listings featured as best sellers, Prathiba M Singh J. restrains Flipkart from allowing any third-party sellers from ‘latching on’ to the mark ‘V Tradition’ used by the Plaintiff or the Plaintiff’s product listings under the mark/name ‘V Tradition’, so as to ensure that third-party unauthorized sellers are unable to misuse the name and product listings of the Plaintiff.
The present suit was filed by the Plaintiff seeking various reliefs including permanent and mandatory injunction restraining trademark infringement and passing off etc against Defendant 1- Flipkart Internet Private Limited and various John Doe sellers. The suit was filed by the Plaintiff for the protection of its rights in the mark ‘V Tradition’ used in relation to clothing for women. It is the case of the Plaintiff that various sellers have unlawfully latched on to the product listings created by the Plaintiff on Flipkart platform as ‘more sellers’ of Plaintiff’s products.
What is ‘Latching of’?
The Court noted that in the present case whenever a seller wishes to place some listings in a specific product category, a recommendation on the basis of the business conducted on its portal is given as to which are the ‘Best Seller’ products. The caption “Grow your business by 3x” along with specific data, is also projected in order to entice the new seller to ‘latch on’ to popular product listings. The said seller is then permitted to ADD the LISTING to his listing page. While giving this recommendation, the mark ‘V Tradition’, as also, the product photographs of the Plaintiff is permitted to be added by the third-party seller, without the permission or consent of the Plaintiff. It is, thus, clear that product listings of the Plaintiff are being permitted to be used along with the Plaintiff’s brand name and image/s of the product created by the Plaintiff. The said brand name and photograph then becomes a part of the product listings of the third-party unauthorized seller who can then make similar looking products and sell them as though they originate from ‘V Tradition’.
The Court observed by documents placed on record that the Flipkart platform is permitting other third-party sellers to ‘latch on’ to the best sellers in one particular segment of products, resulting in various third-party sellers misusing the Plaintiff’s Brand/mark. Such a feature cannot be allowed to be used or offered, to the detriment of the owner of the brand or the person who has created the original product. Consent and authorization of the brand owner and the listing owner would be required before such conduct by any seller is permitted, the Court held the Plaintiff has made out a prima facie case for the grant of an interim injunction against Flipkart. In the opinion of this Court, the balance of convenience lies in favour of the Plaintiff and irreparable injury would be caused to the Plaintiff if an interim injunction is not granted.
Thus, the Court noted that permitting a third-party seller to ‘latch on’, in this manner, to the Plaintiff’s name/mark and product listings is nothing but `riding piggyback’ as is known in the traditional passing-off sense. It amounts to taking unfair advantage of the goodwill that resides in the Plaintiff’s mark and business.
The Court restrained Flipkart from allowing any third-party sellers from ‘latching on’ to the mark ‘V Tradition’ used by the Plaintiff or the Plaintiff’s product listings under the mark/name ‘V Tradition’, so as to ensure that third-party unauthorized sellers are unable to misuse the name and product listings of the Plaintiff.
The Court further directed Flipkart to ensure that the ‘latching on’ feature is disabled qua the mark ‘V Tradition’ used by the Plaintiff till the next date of hearing. The Court passed restrain orders against all such third-party sellers from ‘latching on’ to the product listings of the Plaintiff and misusing the product listings and mark/name ‘V Tradition’, for promoting their products which are not connected to the Plaintiff, in any manner.
It was further directed to the counsel of Flipkart to supply a list of URLs and any other available details of all such infringing third-party product listings within two days. Upon receipt of the same, all the said product listings shall be disabled or taken down, within 48 hours along with a list having contact details, of all the third-party sellers, who have availed themselves of the ‘latching on’ feature in respect of the Plaintiff’s mark/name ‘V Tradition’ and products sold under the said mark, to the Counsel for the Plaintiff.
[Akash Agarwal v Flipkart Internet Private Limited, CS (COMM) 492 of 2022, decided on 02-08-2022]
Advocates before Court-
For Plaintiff: Mr. Anshuman Upadhyay and Mr. Naseem Prashant, Advocates.
For Defendant: Mr. Rajiv Nayyar, Sr. Advocate with Ms. Manjra, Mr. Sidharth Chopra, Ms. Shilpa Gupta, Ms. Surabhi Pande and Mr. Kuber, Advocates
*Arunima Bose, Editorial Assistant has reported this brief.