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Dealing with Unidentified Counterfeiters on E-Marketing Platforms

The rise of e-commerce has revolutionized the world of marketing, offering businesses a global reach and convenience for consumers. However, this digital landscape has also given rise to a significant challenge for rights holders - the sale of counterfeit products by anonymous sellers on e-marketing platforms.

The identification of these counterfeiters can be challenging, as they do not have a physical presence. In response to this issue, various High Courts have taken measures to combat counterfeiting on e-marketing platforms. This article explores a recent order from the Hon'ble High Court of Delhi and its potential implications for right holders in the fight against counterfeiters.

The Case: Counterfeiting of CUTICOLOR Products:
The case in question revolves around the sale of counterfeit "CUTICOLOR" products on e-marketing platforms. The plaintiff, a leading Indian Pharmaceutical Company, claimed to have coined and adopted the mark "CUTICOLOR" in July 2016 for pharmaceutical preparations and cosmetic products. Furthermore, the plaintiff held a registered trademark for "CUTICOLOR" in class 5, effective from November 12, 2017. The plaintiff initiated legal proceedings as they were aggrieved by the sale of counterfeit products bearing the mark "CUTICOLOR" on the platform of Defendant.

The plaintiff's case was based on the fact that unknown defendants, who concealed their identities as fake sellers, were selling counterfeit hair color products with the same "CUTICOLOR" mark. These counterfeit products were packaged to mimic the plaintiff's legitimate products.

Interim Measures by the Hon'ble High Court of Delhi:
In response to the plaintiff's grievances, the Hon'ble High Court of Delhi issued a series of interim measures to address the issue of counterfeiting on e-marketing platforms. These measures aim to empower right holders to combat counterfeiters effectively:

Take Down of Infringing Listings:
The court ordered the immediate removal of all infringing listings of counterfeit products from the e-marketing platform. This step prevents the sale of counterfeit goods to unsuspecting consumers.

Preventing Future Counterfeiting Listings:
In addition to taking down existing infringing listings, the court directed the e-marketing platform to promptly remove any future listings of counterfeit products when notified by the plaintiff. This proactive measure helps in preventing further counterfeit sales.

Disclosure of Seller Information:
"One of the most significant aspects of this order is the requirement for the e-marketing platform to provide the plaintiff with the identities and contact information of the persons who have posted counterfeit listings. This includes names, addresses, phone numbers, email IDs, GST, PAN, and bank account details. This information is crucial for tracking down and pursuing legal action against the counterfeiters."

Implications and Significance:
The Hon'ble High Court of Delhi's interim measures in this case are significant for several reasons. They provide right holders with a practical mechanism to combat counterfeiting on e-marketing platforms:

Effective Deterrence:
The immediate take down of infringing listings and the threat of revealing counterfeiters' identities act as a powerful deterrent against counterfeiting. Sellers engaged in such activities may think twice before continuing.

Preventative Measures:
The court's order also addresses the need for proactive measures. By allowing the plaintiff to report and request the removal of future counterfeit listings, the court acknowledges the continuous nature of this problem and provides a means to tackle it promptly.

Disclosure of Identities:
The most groundbreaking aspect of this order is the requirement for the e-marketing platform to disclose the identities of counterfeit sellers. This information enables right holders to take legal action against the counterfeiters, thereby offering a more robust mechanism for enforcement.

The concluding Note:
The fight against unidentified counterfeiters on e-marketing platforms is an ongoing challenge for right holders. The recent order from the Hon'ble High Court of Delhi in the CUTICOLOR case represents a significant development in addressing this issue. By combining immediate take down measures, proactive prevention of future listings, and the disclosure of seller identities, this order equips right holders with a more effective arsenal to combat counterfeiting in the digital realm.

The Case Law Discussed:
Case Title: Zydus Healthcare Limited Vs Flipkart Internet Pvt. Ltd & Ors
Date of Judgement/Order:27/09/2023
Case No. CS (COMM) 674/2021
Neutral Citation No: N.A.
Name of Hon'ble Court: High Court of Delhi
Name of Hon'ble Judge:C Hari Shankar, H.J.

Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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