With advent of new technology, life becomes easy But nothing comes without a
cost. New technology brings in new challenges too.
E marketing is no more exception. Amazon, Flipkart etc are result of new era
which made life easy. But also proved new opportunities for carrying out illegal
activities too. Latching on other's brand name and other's product image is
burning example of this. How to handle this new problem.
In order to understand this problem , it is necessary to know as to how e-markeing
happens through e-marketing websites? What could be normal mode of selling a
product through e-marketing. The business man has to display its product on the
e marketing cite in order to attract the customer.
What happens when a e marketing web site allows third party sellers to use
images of products, which actually belong to some other party.
What may be liability of such sellers for using the images of third party
product? What remedy may be available to such right holder?
Whether such latching on of right holders name and images of the right holders
product by the third party is permissible under the law?
If not permissible in law, then how the right of a right holder can be
protected? Whether plaintiff would be entitled to the relief of Infringement of
Or whether the plaintiff would have to take recourse of action of Passing off,
which is a common law remedy?
One of such case came up before the Hon'ble High Court of Delhi recently in Suit
bearing CS(Comm) 492 of 2022 titled as Akash Aggarwal Vs Flipkart Internet
Private Limited and Others.
The fact of the case was that the Plaintiff was carrying on its business under
the Trademark V Tradition. The Plaintiff was selling apparels on the e marking
website namely Flipkart.
This case of the Plaintiff was that Flipkart was encouraging and allowing
third-party sellers to 'latch on' and use the mark 'V Tradition', along with the
photographs of the Plaintiff's products, on the said platform.
The subject matter suit was filed seeking reliefs against the e marketing
website Flipkart from permitting third-party sellers to 'latch on' to the name
and the products of the plaintiff.
The plaintiff sought the relief of inter alia are restraining Flipkart from
allowing any person or party to portray itself and/or conduct its business on
the website of Defendant No. 1 as 'more sellers' of goods offered for sale by
the Plaintiff on his own product listings on the website of Defendant No. 1
under the Plaintiff's Trademarks and from enabling the unauthorized sellers from
using the product images of the Plaintiff's product listings and name.
The term latching on by the defendant , used by the plaintiff in the present
case was the unauthorized and illegal use of images of the plaintiff's product
and plaintiff's name by the defendants. The Flipkart was reflecting the names of
other entity as more sellers of the plaintiff's product.
Plaintiff was aggrieved by this fact that Flipkart was not only allowing other
third entity to use the name and images of the product but also showing them as
more sellers of the plaintiff's product. Thus Flipkart was guilty of latching
In this case the plaintiff has put on record the documents to show that when
ever a seller wishes to place some listing for particular category of product,
then best seller products are being reflected.
In this process the images and name of plaintiff's products are allowed to be
added on the listing page of third seller without the consent of the plaintiff.
Thus Flipkart was allowing other sellers to latch on name and images of
plaintiff's product without its permission.
The Hon'ble High Court of Delhi observed that such kind of latching on feature
is not permissible under the passing off. It is submitted that common law right
of a right holder is a very right.
In such kind of violation is well protected under the Trademarks Law. The Right
holder can seek the relief of passing off against such latching off. It would be
considered as unauthorized use of Plaintiff's trademark without consent.
Accordingly the Hon'ble High Court of Delhi was pleased to grant relief against
such latching on activities. The Defendant No.1 namely Flipkart was also
directed to disable this feature.
Thus in this case we have seen that the Hon'ble High Court of Delhi has
protected the plaintiff against such latching on activities by the violators.
This is but natural that law makers can not envisage all future incidences ,
while making the law. This is why there has always been gap between the law
makers and law brakers. Now it is the responsibility of judiciary to fill up
this gap and so has rightly been done in this case .
Case Law Discussed:
Case Title: Akash Aggarwal Vs Flipkart Internet Private Limited And
Date of Judgment: 02.08.2022
Case: CS(Comm) 492 Of 2022
Name of Hon'ble Court: High Court Of Delhi
Name of Hon'ble Judge: The Hon'ble Justice Prathiba M Singh
Written By: Ajay Amitabh Suman
, IPR Advocate, Hon'ble High Court of Delhi