9911796707
TMI Blog2002 (1) TMI 1320X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. 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 'bazaar' denotes the place where trading takes place, plaintiffs, adopted this unique combination. They are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 kabadi.com . Plaintiffs have not filed any replication to the written statement despite opportunity. 6. I have heard learned counsel for the parties and have been taken through the record. They firstl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raphical 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 domain name or offering the domain name to the genuine buyer. Obtaining fraudulent registration with an intent to sell the domain name to the lawful owner of the name at premium is called cyber squatting . The Cyber squatters quickly sell the domain names to other non-related entities, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 rejected. 14. Learned counsel for the plaintiff next argued that the expression kabadibazaar is not descriptive but suggestive and the word kabadi and bazaar have been used as unique combination. The business of the plaintiffs differs from Kabadi (the buyer and seller of second hand goods), since the plaintiffs are not involved in buying and selling of goods. The plaintiffs' target ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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-mark is descriptive if it imparts information directly. If it stands for some idea which requires some imagination to connect it with the goods it is sugeestive . The information may concern some characteristic or quality or ingredient of the product. Applying these principles here, as noticed above, the word kabadi means, a person, who buys unwanted goods and sometimes even unwanted goods are called kabaad Bazaar is a place where goods are sold or bought. Thus, the word kabadibazaar id descriptive word as it impart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 of the plaintiffs was that they were manufacturing gas appliances since 1976 and marketing them under the trade-mark Super-Flame. The suit was instituted in 1985. The learned Judge came to the conclusion that Super Flame was a coined or a fancy word and that the word is made meaningful only when applied to the product for which it was created. Findings on prior user of the word Super Flame for several years was recorded in favor of the plaintiff. In Time Warner Entertainment Company, L.P. (supra) it was found that the plaintiff has largest cable channel television under the trade-mark HBO/HOME BOX OFFICE in use since 1972 and it operated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was placed on WIPO Arbitration and Mediation Centre, Panel decisions, upholding registration and co-existence of domain names such as Sampatti.com v. Sampati.com, gateway.com v. gate-way.com, CITY UTILITIES v. citiutilities.com and PET WAREHOUSE v. petwarehouse.com. 23. In order to appreciate the rival contentions it is necessary to refer to para 4 (a) of the above said Policy which sets-forth the conditions to be proved for showing abusive registration. It reads as under: (i) the domain name is identical or misleadingly similar to a trade or service mark in which the complainant has rights, and (ii) the holder of the domain name has no rights or legitimate interests in respect of the domain name; and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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