9911796707
TMI Blog1999 (4) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction restraining the defendants from using the mark "RADIFF" or any other word on mark either as part of their trade name or trading style which is deceptively similar to plaintiffs' trading style and/or "REDIFF" or using the get up, concept and lay out, etc., so as to pass off the defendants' product and/or services as those of the plaintiffs or in some way connected with the plaintiffs. The plaintiffs are further seeking an injunction against the defendants from using the literary or artistic work found on the plaintiffs' web page or infringing the defendants copyright thereon without the plaintiffs' licence. Along with the suit, the plaintiffs have taken out this Notice of Motion for interlocutory injunctions. 3. The plaintiffs, Rediff Communication Limited are an on line media company carrying on the business of communication and providing services through the internet since 6th January 1997. The plaintiffs submit that they are a group company of Rediffusion Dentsu Young and Rubicam Advertising Limited. The word "REDIFF" is comprised of the first six letters of the their group companies' corporate names and is associated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rediff on the Net' whereas the defendants website is titled "RADIFF ONLINE". There is no similarity between the two. The plaintiffs' website is more in the nature of a 'web newspaper' and provides various services from news to shopping whereas the defendants website mainly provides 'hyper text links' to its advertisers, websites. Thus the 'look and feel' of the plaintiffs' website is totally different from the defendants website. 6. It is further contended that the manner of watching for information on the Internet is such that there is no likelihood of deception or confusion between 'www.rediff. com' and 'www.radiff. com'. It is contended that the user of the Internet can never connect to a website by mistake. Besides, the users of the computers and are educated people and thus there is no possibility of any contusion being made by an Internet user in the two names. It is also contended that the word depicted on the website of the plaintiffs is not artistic or literary work within the meaning of the Copyright Act, 1957. Moreover there is no evidence about the alleged reputation in the domain name "Rediff. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of its similarity to the name, brand name or trade mark of an unconnected commercial organisation must expect to find himself on the receiving end of an injunction to restrain the threat of passing off, and the injunction will be in terms which will make the name commercially useless to the dealer. It was held in that decision that the name Marks and Spencer could not have not have been chosen for any other reason than that it was associated with the well known retailing group. The decision further goes on to say that the value of the name consists solely in its resemblance to the name or trade mark of another enterprise, the Court will normally assume that the public is likely to be deceived, for why else would the defendants choose it? It was also stated that someone seeking or coming upon a website called http:/ Marks and Spencer. co. uk would naturally assume that it was that of the plaintiffs. 9. In Cardservice International Inc. v. McGee, reported in 42 USPQ 2d 1850, it was held that the domain name serve function as the trademark and is not a mere address or like finding number on the internet and, therefore, it is entitled to equal protection as trademark. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portance and can be a valuable corporate asset. A domain name is more than an Internet address and is entitled to the equal protection as trade mark. With the advancement and progress in the technology, the services rendered in the Internet site have also come to be recognised and accepted and are being given protection so as to protect such provider of service from passing off the services rendered by others as his services. In yahoo Inc. (supra) it was observed that in a matter where services rendered through the domain name in the Internet, a very alert vigil is necessary and a strict view is to be taken for its easy access and reach by anyone from any corner of the globe. 12. The main bone of contention between the parties before me is whether the defendants by adopting the domain name "RADIFF" which is deceptively similar to plaintiffs' mark/domain name 'REDIFF', have been passing off their services and goods as that of the plaintiffs. To that end, it would be appropriate to recapitulate some well established principles. The law relating to passing off is fairly well settled. The principle underlying the action is that no one is entitled to carry on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putation. Deception may be of several kinds i.e. that the public may think that the goods manufactured by the defendants are in fact manufactured by the plaintiffs. ...." In that case the Division Bench granted injunction restraining the defendants from using the word "Volvo" or any other deceptively similar word as part of their name or trade mark of the defendants so as to pass on the defendants goods or business as that of the plaintiffs. 15. Reference may be made to a decision of the Delhi High Court in Montari Overseas v. Montari Industries Ltd., reported in 1996 P.T.C. 142 wherein it was found that the defendant adopted a trade name that was identical to that of the plaintiff and the Court while injuncting the defendant held that when a defendant does business under a name which is sufficiently close to the name under which the plaintiff is trading and that name has acquired a reputation and the public at large is likely to be misled that the defendant's business is the business of the plaintiff, or is a branch or department of the plaintiff, the defendant is liable for an action in passing off. 16. In the matter of Kirloskar Diesal Recon Pvt. Ltd. and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are operating on the website and providing information of similar nature. Both the plaintiffs and the defendants offer facility of sale of books, music cassettes and compact discs and flowers. Both offer a chat line and both presently offer a cricket opinion poll. There can be no doubt that the two marks/domain names. "RADIFF" of the plaintiffs and 'RADIFF' of the defendants are almost similar. When both domain names are considered it is clearly seen that two names being almost similar in nature there is every possibility of internet user being confused and deceived in believing that both domain names belong to one common source and connection although two belong to different persons. 18. In the affidavit-in-reply it is sought to be contended that the word "RADIFF' is derived from the four words viz., 'radical', 'information', 'future' and 'free'. I am afraid that the explanation appears to be completely false and unbelievable. It seems that this is devised only in an attempt to answer the plaintiffs claim. To my mind, the explanation given by the defendants makes no sense inasmuch as the defendants want me to believe t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lycos, etc. and post a query and on search results being provided, connect to the host computer. All the websites which are shown in the search results are "hyper text linked' i.e. by clicking the mouse on a particular site, the user is directly taken to that site. It is stated that the "browsers, have a memory which helps them store the U.R.L.S of the website visited by the user of the software package. Therefore, according to defendants, a user of the internet can never connect to a website by mistake. Moreover, the users of the internet are persons skilled in the use of computers and are educated people. Even if a user of the internet were to post a query for a particular website on any search engine, he will be able to easily distinguish one website from another. 21. There is no merit in this contention. In the first place, it is an admitted position that the websites are widely publicised in the newspapers and magazines, etc. Thus there is always a possibility of the first user accessing the defendants' website believing it to be the plaintiffs' website because of the close similarity in the domain names. It is pointed out by the plaintiffs that the pot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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