9911796707
TMI Blog1999 (4) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... using the mark RADIFF or any other word on mark either as part of their trade name or trading style which is deceptively similar to plaintiffs' trading style and/or REDIFF or using the get up, concept and lay out, etc., so as to pass off the defendants' product and/or services as those of the plaintiffs or in some way connected with the plaintiffs. The plaintiffs are further seeking an injunction against the defendants from using the literary or artistic work found on the plaintiffs' web page or infringing the defendants copyright thereon without the plaintiffs' licence. Along with the suit, the plaintiffs have taken out this Notice of Motion for interlocutory injunctions. 3. The plaintiffs, Rediff Communication Limited are an on line media company carrying on the business of communication and providing services through the internet since 6th January 1997. The plaintiffs submit that they are a group company of Rediffusion Dentsu Young and Rubicam Advertising Limited. The word REDIFF is comprised of the first six letters of the their group companies' corporate names and is associated with the plaintiffs and their group companies. The plaintiffs have on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per' and provides various services from news to shopping whereas the defendants website mainly provides 'hyper text links' to its advertisers, websites. Thus the 'look and feel' of the plaintiffs' website is totally different from the defendants website. 6. It is further contended that the manner of watching for information on the Internet is such that there is no likelihood of deception or confusion between 'www.rediff. com' and 'www.radiff. com'. It is contended that the user of the Internet can never connect to a website by mistake. Besides, the users of the computers and are educated people and thus there is no possibility of any contusion being made by an Internet user in the two names. It is also contended that the word depicted on the website of the plaintiffs is not artistic or literary work within the meaning of the Copyright Act, 1957. Moreover there is no evidence about the alleged reputation in the domain name Rediff. Therefore the plaintiffs are not entitled to any relief. 7. The controversy in the present case centers around the domain name on the Internet. Undoubtedly the Internet is one of the important features of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name commercially useless to the dealer. It was held in that decision that the name Marks and Spencer could not have not have been chosen for any other reason than that it was associated with the well known retailing group. The decision further goes on to say that the value of the name consists solely in its resemblance to the name or trade mark of another enterprise, the Court will normally assume that the public is likely to be deceived, for why else would the defendants choose it? It was also stated that someone seeking or coming upon a website called http:/ Marks and Spencer. co. uk would naturally assume that it was that of the plaintiffs. 9. In Cardservice International Inc. v. McGee, reported in 42 USPQ 2d 1850, it was held that the domain name serve function as the trademark and is not a mere address or like finding number on the internet and, therefore, it is entitled to equal protection as trademark. It was further held that a domain name is more than a mere internet address for it also identifies the internet site to those who reach it, much like a person's name identifies a particular person or more relevant to trade mark disputes, a company's name identifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tection so as to protect such provider of service from passing off the services rendered by others as his services. In yahoo Inc. (supra) it was observed that in a matter where services rendered through the domain name in the Internet, a very alert vigil is necessary and a strict view is to be taken for its easy access and reach by anyone from any corner of the globe. 12. The main bone of contention between the parties before me is whether the defendants by adopting the domain name RADIFF which is deceptively similar to plaintiffs' mark/domain name 'REDIFF', have been passing off their services and goods as that of the plaintiffs. To that end, it would be appropriate to recapitulate some well established principles. The law relating to passing off is fairly well settled. The principle underlying the action is that no one is entitled to carry on his business in such a way as to lead to the belief that he is carrying on the business of another man or to lead to believe that he is carrying on or has any connection with the business carried on by another man. In the case of Erven Warnink v. Townend, reported in 1980 R.P.C. 31 which is known as Advocate's case the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or trade mark of the defendants so as to pass on the defendants goods or business as that of the plaintiffs. 15. Reference may be made to a decision of the Delhi High Court in Montari Overseas v. Montari Industries Ltd., reported in 1996 P.T.C. 142 wherein it was found that the defendant adopted a trade name that was identical to that of the plaintiff and the Court while injuncting the defendant held that when a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trading and that name has acquired a reputation and the public at large is likely to be misled that the defendant's business is the business of the plaintiff, or is a branch or department of the plaintiff, the defendant is liable for an action in passing off. 16. In the matter of Kirloskar Diesal Recon Pvt. Ltd. and another v. Kirloskar Proprietary Ltd. and others, reported in AIR1996Bom149 the learned Single Judge of this Court held that the very definition of 'trade mark' includes 'mark' and the very definition of 'mark' includes 'name' and as such, the term 'trade mark' in section 105(c) of the Act must, therefore, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' of the defendants are almost similar. When both domain names are considered it is clearly seen that two names being almost similar in nature there is every possibility of internet user being confused and deceived in believing that both domain names belong to one common source and connection although two belong to different persons. 18. In the affidavit-in-reply it is sought to be contended that the word RADIFF' is derived from the four words viz., 'radical', 'information', 'future' and 'free'. I am afraid that the explanation appears to be completely false and unbelievable. It seems that this is devised only in an attempt to answer the plaintiffs claim. To my mind, the explanation given by the defendants makes no sense inasmuch as the defendants want me to believe that from the alleged phrase radical information, future, free , the word RADIFF was coined. I am prima facie satisfied that the only object in adopting the domain name RADIFF was to trade upon the reputation of the plaintiffs' domain name. The argument that the field of activity is different is also without any substance. Since the field of activity of plaintiff and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants, a user of the internet can never connect to a website by mistake. Moreover, the users of the internet are persons skilled in the use of computers and are educated people. Even if a user of the internet were to post a query for a particular website on any search engine, he will be able to easily distinguish one website from another. 21. There is no merit in this contention. In the first place, it is an admitted position that the websites are widely publicised in the newspapers and magazines, etc. Thus there is always a possibility of the first user accessing the defendants' website believing it to be the plaintiffs' website because of the close similarity in the domain names. It is pointed out by the plaintiffs that the potential users, and existing users, talk about such website, products and services, and it is entirely possible and likely that on a potential user being told to access the site REDIFF' he may get misled on accessing the website RADIFF' when he is looking for the website REDIFF. Moreover, a first time visitor to website cannot possibly distinguish one website from another website which also he has not visited. Besides this, as a resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
