Deceptive Similarity now extends
itself beyond trademarks to the realm of domain names as well.
While the principles that apply to both are similar, the
jurisprudence to extending such principles seems to lie in the
fact that web addresses are increasingly becoming an extension
of a product or brands identity. The recent case of
Adobe Systems v. Rohit Rathi 2008 (37) PTC 523
is a witness to these very dicta.
Adobe, in the present suit moved
to Delhi High Court in an attempt to obtain a decree of
permanent injunction to restrain Mr. Rohit Rathi and others
from using the domain name "www.adobeinc.org" and the
trademark "ADOBE" or any other deceptively similar
variant, on the internet or otherwise, so as to the same
amounting to infringement .
It was submitted that the
physical address of Mr. Rathi given in the "WHOIS
search" was apparently fictitious and incomplete and so
was the mobile number, in as much as it contained only seven
digits instead of ten. Adobe also submitted that the summons
had been sent to Mr. Rathi on the aforesaid e-mail address.
Adobe employing more than 3700
people around the world and having acquired over 250 patents
creates popular software applications include ADOBE PHOTOSHOP,
ADOBE PAGE MAKER, ADOBE ILLUSTRATOR and ADOBE PREMIER. One of
the key witnesses also substantiated that Adobe caters to
design professionals a complete design environment in its
product the ADOBE CREATIVE SUITE which combines a range of
software. Adobe Systems India Pvt. Ltd was established in 1998,
with distributors to market and sell their products.
The witness also stated vide an
affidavit that Adobe is known by its corporate and house name
which doubles as a flagship and primary trademark for most
products. Adobe has its trademark registered in India with
respect to its plethora of products, while enjoying
trans-border reputation. It was submitted that the mark had
become synonymous with Adobe. The domain names held by Adobe
include www.adobe.com; www.adobemagazine.com; and
Adobe in August, 2007,
discovered that the domain name www.adobeinc.org had been
registered by Mr. Rathi (through his co-defendant the
registering authority) without any authorization or permission
from them. Adobe learnt that through the website
www.adobeinc.org, deceptive commercial activities relating to
their products were being carried out using the deceptive and
confusing name 'Adobe Inc' on the internet.
The original computer printout
of the WHOIS search showing the details of the registration of
Mr. Rathi was presented. The same revealed the details of the
domain name registration. It was contended that the adoption of
the said domain name by the defendants was clearly a mala fide
attempt to ride on the popularity that Adobe had acquired. It
was also averred that the inclusion of the mark
'ADOBE' in the domain name using the suffix
'inc' had been designed to indicate to some
affiliation or association with the plaintiff. The fact that
while using the internet, users are accustomed to
reaching the websites of well-known brands by keying in the
specific words identifying those brands, would return all web
pages which include the said word in the domain names. They
propounded that a person trying to misappropriate the goodwill
and reputation of another's trademark can misdirect
traffic intended for that person to his website, by
incorporating the trademark in the domain
name of his website. They substantiated their stand by stating
that several domain names include the mark
'ADOBE' and that a legitimate right vested in
Considering the pleadings, the
evidence and the arguments advanced by the Counsel for Adobe
systems, the High Court of Delhi decreed punitive damages
amounting to Rs 5 Lakhs in favour of Adobe Systems.
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