India: Super Cassettes Engaged In Protecting Its Domain Name

Last Updated: 26 February 2009

Domain names have assumed great importance in making an impression upon users, customers and those wishing to gain access in the virtual world. Due to certain underlying similarities in the impact that trademarks and domain names have upon sales, marketing and consumers, the law of trademarks is often extrapolated onto domain name disputes. Elucidating another such instance is the suit Super Cassettes Industries Ltd. v. Wang Zhi Zhu Ce Yong HU and Ors 2009 (39) PTC 162 (Del.) which came forth the High Court of Delhi.

Praying for the grant of a permanent injunction, Super Cassettes Industries Ltd. moved to court to institute an action against the use of the domain name by Wang Zhi Zhu Yong HU and Others. The suit also prayed to pass an order to prevent the use of the trademark/ trade name Supercassettes or any other deceptively similar name. Vide an earlier ex parte order, Yong HU had been restrained from the use of the domain name or the trade mark or trade name.

The domain name had been registered in China in the name of Mr. Wang Zhi Zhu Ce Yong Hu and Mr. Ying ter Wang Ju Le Bu Ltd. Subsequently, M/s ICL Ltd., USA was also impleaded as a party to the suit. Neither of the defendants could be served Notice in the ordinary way and were served the same via publication. They failed to file a written statement and were proceeded against ex-parte. Supercassettes led ex-parte evidence in the form of an affidavit sworn in by their Deputy General Manager and has tendered supporting documents.

Supercassettes, engaged in the business of consumer electronics, CDs, audio/video, magnetic tapes and cassettes and film production has rights in over 2000 video titles, about 40,000 Hindi film songs, 30,000 Hindi non-film songs and 50,000 songs in regional language. They also use their corporate name in relation to other businesses being carried on including mineral water, incense sticks, detergent cakes etc. They also claim to be the registered owners of the copyright in the artistic logo SCI which denotes SUPER CASSETTES INDUSTRIES. Supercassettes vehemently averred that the trademark and trade name SUPER CASSETTES was always perceived to be indicative of them and copies of advertisements showing the use of the trade name/trademark.

With respect to the domain name, the defendants stated that they had informed Super Cassettes that they were only the virtual office providers and that the real entity behind the said domain name was ICL Ltd., USA the third party. The website under the domain name was found to be dealing in adult and pornographic images and providing links to other similar hardcore pornographic websites. Super Cassettes averred that the activities promoted by the said website were detrimental to the corporate image, goodwill and reputation enjoyed by them. They further contended that under the impugned domain name, the defendants were promoting and passing themselves off as the business/associate/affiliate of Super Cassettes and passing off their goods and services thereof, in as much as it was Super Cassettes Industries alone which was in the trade circles known to be carrying on business in the name and style as adopted by them. Stating themselves to be importers of substantial goods of SUPER CASSETTES, in which name the defendants had set-up the website aforesaid. It is further the case of the plaintiff that the plaintiff imports a substantial amount of goods from China, they averred that their profile also appeared on the Chinese Government' website called China Commodity Net. The defendants are claimed to be cyber pirates whose actions were detrimental to the plaintiff. Super Cassettes also deposed that monetary losses close to at least Rs.25 lacs had accrued owing to the impugned website and that damage to the goodwill and reputation was immense. Super Cassettes also cited several precedents to establish their case.

The Court took into account the fact that the domain name was created in 2003, by which time Super Cassettes had been carrying on business for over 20 years. The Court observed this to be a clear attempt of passing off the business/services offered through the said domain name. The nature of the services/business being transacted was also found to be contrary and detrimental to the corporate philosophy and the image of Super Cassettes. A copy of the decision of WIPO Arbitration and Mediation Centre had also been submitted to the Court which revealed that the defendants were guilty of similarly misusing the trademark of the complainant in that case also.

The Court stated that the defendants had seemed to have to have made it a practice to register domain names with the trademarks or trade names of successful businesses so as to attain undue advantage from its use therefrom. The Court pronounced a decree of permanent injunction as claimed as well as a decree directing the defendants to, if have renewed the registration of the impugned domain name, to transfer the same to the plaintiff. A decree for damages amounting to a sum of Rs.5 lakhs was also passed in favour of Super Cassettes was also passed apart from awarding the costs of the suits.

© Lex Orbis 2009

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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