9911796707
TMI Blog2002 (1) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation and false statements. This order will dispose of both these applications. 2. Briefly stated, plaintiffs' case is that they are proprietors of the domain name "www.kabadibazaar.com" and trade-mark, in relation to the information website, dealing with second hand goods on the internet. They are involved in the business of e-commerce since April, 1999. They realised the vast potential of second hand goods market, which in the Indian context are not readily consigned to destruction but are usually recycled. Every household deals with the person called "Kabadiwala", who periodically takes away unwanted goods from the house which may be of some use in other context, like old newspapers, used bottles and broken electronic goods. These goods after necessary repairs are either sold in the market known for second hand goods or are used for manufacturing other items like paper bags etc. Formal markets for second hand goods are largely periodical and very limited in application and usually beyond the knowledge of vast majority of people. It is pleaded that taking into account that "kabadi" is a person who buys second hand products, and 'bazaa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market where second hand goods are bought and sold. It is used in common parlance by Hindi speaking population of the country. It being descriptive word is not capable of becoming distinctive of one sole trader. 5. It is further pleaded that the domain name "kabaaribazaar.com" was earlier registered in the name of the defendant and not in the name of Mr. Amar Nath as claimed in the plaint. The Plaintiffs have made a completely false and misleading statement of their having contacted Amar Nath, who agreed not to launch a website using the domain name "kabaaribazaar.com". The plaintiffs have copied the entire concept from the website "eby.com", which has been in operation since August, 1995 and is the most popular site for second hand sales. It is pleaded that defendant No. 3 came into existence in 1998 and has been offering unique services to its clients through registration of various domain names which is not prohibited in law. The allegations of bad faith and cybersquatting are also denied. It is further pleaded that on 3.7.2000, plaintiffs had also obtained registration of the domain name "ekbari.com" and this domain co-exists with " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly knowing internet address of the newspaper. Thus, domain name indicates to a user information as to the content of a website. It shares many of the attributes of trademarks or trade names. Each domain name is unique. The "domain name" cannot be same irrespective of geographical distance, which may not so in case of trademarks or trade-names. Once registered the "domain name" may be used from anywhere in the world. 9. The registration of domain names was taken up initially by the Internet Network Information Centre (InterNIC) in United States which is till date responsible for handling the day to day administration of the domain name system. The entity now responsible for assigning domain names is Network Solutions Inc. (NSI) acting on behalf of the Inter NIC. Now, the task of registering domain names world-wide has been divided geographically. The system of assigning the domain name was on first-come-first-registered basis. It lead to the reserving of many well known trade names, brand names, company names, etc. by individuals/corporations other than the ones with a genuine interest in the domain name, with a view to trafficking/doing business on the said do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on the website www.kabadibazaar.com taking into account a kabadi being a person who takes in second hand products and bazaar reflects that there is some trading happening on the site. The plaintiffs, having adopted this unique combination, are the proprietors of the same and the unauthorised use or license by any other would amount to a violation of the right vested with the plaintiff. The present dispute relates to a domain name which serves as an address on the internet." 13. Bare reading of the above would show that the plaintiffs' own case is that word "Kabadi" is a person who takes away un-wanted goods from the house which may be of some use in other context. "Bazaar" is a place where the trading takes place. The periodical existence of markets for second hand goods, is in fact conceded in the plaint. Thus, the word "kabadibazaar" cannot be said to be a newly coined word. The word "kabadibazaar" also finds reference in Hindi dictionary "Rajpal Hindi Shabdkosh". Therefore, I am unable to accept the contention, that the word "kabadibazaar" is unique or was newly coined by plaintiffs and the same is rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs' www.mutualfundindia.com (without alphabet 's') holding that the word "mutualfund" is descriptive of the character of the services offered. It was held that the material placed on record falls short of indicating that the said word had acquired a secondary meaning, which is a precondition for granting protection to a descriptive name. The Court cited with approval the observations made in Office Cleaning Services v. Westminster Window and General Cleaners Ltd. Wherein it was held:- "the use of descriptive words is jealously safeguarded, so in the case of trade names the Courts will not readily assume that the use by a trader as part of his trade name of descriptive words already used by another trader as part of his trade name is likely to cause confusion and will easily accept small difference as adequate to avoid it ..... where a trader adopts words in common use for his trade name, some risk of for his trade name, some risk of confusion is inevitable. But that risk must be run unless the first monopolises the words. The court will accept comparatively small differences as sufficient to avert confusion." (emphasis supplied) 18. The trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne month. Admittedly, the defendants' website has been functioning since November, 1999. Several other websites under the domain name kabadibazaar have also been in existence in Delhi, Bombay, Bangalore as well as in USA. It was pleaded that as on 3.8.2000, website of the plaintiffs consisted of total six pages. These pages consisted of an introduction page, a page for searching for seconds and a page showing search results for seconds. A search of all categories, all sub categories, cities, listing all seconds on sale displayed only 21 items. Of these, 12 sellers were from New Delhi, 4 from Mumbai, 2 from Nasik, and one each from Rajkot and Calcutta and one was listed as "Non Indian". Nothing has been placed on record to show the actual business carried out by the plaintiffs during this period. Even balance sheet or statement of account has not been filed. In these circumstances it is not possible to hold that the domain name of the plaintiffs "www.kabadibazaar.com" had acquired a secondary meaning. 21. The ratio of decisions cited by the learned counsel for the plaintiffs is not applicable to the facts of this case. In Globe Super Parts (Supra), the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) that the defendants got registered various other combinations with different spellings of the said domain name; (b) that on receipt of the complaint, when the plaintiff No. 1 met the defendants in the first week of December, 1999, they asked for huge amount of money and were not willing to transfer for less; and (c) that the defendants had also booked several other domain names like "rajourigardenmarket.com", "karolbagmarket.com", with which they have no connection and none of these websites are operational, and these sites consist of advertisements of defendants. These were booked with the intention of making illegal profits. Learned counsel for defendants argued to the contrary, submitting that booking and selling of domain names is not prohibited under the Internet Law; that the defendants have hosted sites for traders belonging to various markets in Delhi and the features and rates offered at the said sites are exceptional and rarely available on the internet. The defendants had live website "www.kabaribazaar.com" since November, 1999 which attracted more traffic than that of the plaintiffs' website. In support of his submission reliance wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Naukari.com' "Noukri.com" etc. has also not been denied. Nothing has been brought to my notice to show that the booking and selling of domain name is prohibited under the Internet Law. On the basis of material placed on record, prima facie, it is not possible to conclude that the registration by the defendants was abusive or was in bad faith. 26. To conclude, the word "Kabadibazaar" is a word commonly used in Hindi parlour having a dicitionary meaning. It is a descriptive word which cannot serve as a trade-mark or trade-name unless it is established that it has attained a secondary meaning. Cases cited by the plaintiffs in the plaint, refer to well known trade names and the observations made therein are not applicable to the facts at hand. The material placed on record prima facie is not enough to show that the plaintiffs' domain name had acquired the secondary meaning. The allegations of abusive registration/cyber squatting are also not substantiated. In the result, on relative strength, the case appears to be in favor of the defendants. It may be clarified here that the ex parte ad interim injunction was granted to the plaintiffs on 24th April, 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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