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Living Media India Limited v/s Lallantop Media & Another

    CS(COMM) No. 1054 of 2018 & I.A. No. 10158 of 2018

    Decided On, 27 February 2019

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE J.R. MIDHA

    For the Plaintiff: Sajad Sultan, Advocate. For the Defendants: None.



Judgment Text

Oral:

1. The plaintiff has instituted this suit for permanent and mandatory injunction and damages against defendant No.1.

2. The plaintiff is a part of “India Today Group” which is into media business for more than four decades. The plaintiff created and registered an online domain name “THELALLANTOP.COM” on 16th October, 2015 and designed a full-fledged Hindi News website catering to news, entertainment, sports and overall infotainment. The plaintiff in order to protect and secure its trademark/brand name ‘THELALLANTOP.COM’ filed trademark applications for registration of trademark ‘THELALLANTOP.COM’ under various classes, which are currently registered in favour of the plaintiff under TM application No.3527389 under classes 09, 16, 25, 35, 38 and 41. According to the plaintiff, the trademark and brand ‘THELALLANTOP.COM’, by virtue of long continuous use, has become associated with the plaintiff and has acquired secondary meaning and distinctiveness which associates the trademark/brand ‘THELALLANTOP.COM’ with that of the plaintiff exclusively. The plaintiff’s website ‘THELALLANTOP.COM’, had around 19 Lacs subscriber base on dedicated YouTube Channel and 3 Million likes on a dedicated official Facebook page till the end of May, 2018.

3. Defendant No.1 registered online domain name ‘THELALLANTOP.NET’ on 21st April, 2018, which is similar to the plaintiff’s domain name ‘THELALLANTOP.COM’ through defendant No.2, which is a domain name Registrar. Defendant No.1, through the impugned domain, is also running an online Hindi News services, which are exactly the same services as provided by the plaintiff through its website ‘THELALLANTOP.COM’. According to the plaintiff, defendant No.1 has fraudulently, dishonestly and illegally used, copied and infringed the registered trademark of the plaintiff to encash the goodwill of the plaintiff at the expense of plaintiff.

4. The plaintiff claims that defendant No.1 was well aware of existence of the plaintiff, it’s website and its vast reputation and goodwill; the defendant being second comer in the market where the plaintiff is already a leader should have exercised higher degree of care for creating and operating the impugned website; and Defendant No.1’s adoption and use of impugned website underlines the malafides and dishonest intention of the defendant No.1 to encash upon the plaintiff’s reputation and goodwill.

5. The plaintiff issued a legal notice dated 30th April, 2018 for cease and desist to defendant No.1 by registered post and e-mail. The legal notice was delivered on 7th May, 2018 to defendant No.1 who did not respond.

6. The defendant failed to appear before this Court despite service and was proceeded ex parte on 26th September, 2018.

7. Learned counsel for the plaintiff seeks a summary judgment against defendant No.1 under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 which empowers this Court to pass a summary judgment without recording evidence in cases where defendant No.1 has no real prospect of defending the claim. It is submitted that defendant No.1 has no real prospect of defending this claim. Reliance is place on judgment of this Court in Sandisk LLC v. Memory World 2018 SCC Online Del 11243. Learned counsel for the plaintiff also relies on Tata Sons Limited v. ARNO Palmen (2013) 199 DLT 437 in which this Court passed a decree in respect of the domain name ‘www.tatainfotech.in’.

8. Learned counsel for the plaintiff submits that the plaintiff is well known for maintaining the highest standards of journalism and is considered to be the best in its class and any third party using or exploiting any intellectual property of the plaintiff for any service or product would not only unduly enrich the infringer but also cause huge loss to the plaintiff both in terms of compromising the quality of services and loss of revenue to the plaintiff.

9. This Court is satisfied that the defendant has no real prospect of defending the claim. The plaintiff is the proprietor of the trademark ‘THELALLANTOP.COM’ and the defendant has no right to use the domain name ‘THELALLANTOP.NET’. Defendant no.1 has infringed the registered trademark of the plaintiff and also copied, used and disparaged the news and other contents created by the plaintiff on the impugned website. In a similar matter of Tata Sons Limited v. ARNO Palmen (Supra) relating to domain name, direction was given by this Court to the Registrar to transfer the domain name.

10. The plaintiff suit is decreed in respect of prayer 34(ii) and (iii) and defendant No.1 is restrained from usi

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ng the domain name ‘THELALLANTOP.NET’; defendant No.1 is directed to transfer the domain name ‘THELALLANTOP.NET’ to the plaintiff; and defendant No.2 is directed to facilitate the transfer of the domain name ‘THELALLANTOP.NET’ to the plaintiff. 11. Learned counsel for the plaintiff does not press for the damages and mesne profits. Learned counsel for the plaintiff however presses for legal cost to the plaintiff. The legal cost of Rs.1,00,000/- is awarded to the plaintiff. The suit is decreed in the above terms.
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