Introduction:
The lawsuit was initiated by the plaintiffs Hamdard National Foundation (India) and Hamdard Dawakhana, who also conduct business as Hamdard Laboratories India, against the defendants Amazon Seller Services Pvt. Limited and M/s. Golden Leaf. The claim is related to the trademark infringement of plaintiff’s product as well as mark “ROOH AFZA” at e commerce site. The judgement was heard in the High Court of Delhi and the judgement was rendered by Justice Prathiba M. Singh on 11.11.2022.
The plaintiff:
The plaintiff’s No. 1 and 2 manufacture and market a variety of unani and ayurvedic medications, oils, syrups, and non-alcoholic drinks. The Hamdard Group has a long history that goes back more than a century to the establishment of a unani clinic by renowned unani doctor “Hakeem Hafiz Abdul Majeed” under the name “Hamdard Dawakhana.”
The Plaintiff no. 1 own rights over the marks ‘HAMDARD’ and ‘ROOH AFZA’. The Plaintiff registered the trademark “ROOH AFZA” in 1907. The plaintiffs have used the trademark “ROOH AFZA” for a variety of goods, including non-alcoholic drinks and snacks, for which plaintiff No. 2 acquired the assignment from plaintiff No. 1 on August 11, 1975. One of the Plaintiffs’ registrations for the mark ROOH AFZA, which was filed in India, goes back to August 3, 1942. The Plaintiffs have also registered other trademarks for variations of “ROOH AFZA”.
The Allegation:
Plaintiffs discovered a listing by “M/s. Golden Leaf” on the website of Defendant No. 1, and when one clicks on the link of “Golden Leaf,” the contact information was shown as “C/o Amazon Sellers Services Pvt. Ltd.” On December 6, 2021, the Plaintiffs made purchases of the aforementioned item (ROOH AFZA) and discovered to their utter amazement and disbelief that the aforementioned item i.e ROOH AFZA was not produced by the plaintiffs. The plaintiffs senior counsel claims that the aforementioned product is made in Karachi, Pakistan and does not adhere to the laws governing such products, including the Legal Metrology Act, 2009 (hereinafter referred to as “LMA”), the Legal Metrology (Packaged Commodities) Rules, 2011, and the Food Safety and Standards Act, 2006 (hereinafter referred to as “FSSAI”).
The analysis and decision:
When the case was placed before this Hon’ble High Court of Delhi, New Delhi on September 5, 2022, Mr. Siddharth Chopra, senior counsel representing Defendant No. 1 had stated that if he is given the URLs of the illegal listings, he would remove them. The plaintiffs further noted that they had made three transactions from three different vendors using the Amazon platform, and that on each occasion the merchandise had been identified as coming from Hamdard Laboratories (Waqf), Pakistan, which is based in Karachi, Pakistan.
The court observed that ‘ROOH AFZA’ is undoubtedly a product that has been consumed by Indians for more than a century. The same serving as a human beverage requires adherence to quality criteria in accordance with the relevant rules established by the LMA and FSSAI. It is unexpected that an imported item from Pakistan on the platform of http://www.amazon.in, is being offered without the manufacturer’s information. Therefore, it is possible that any user or customer on the http://www.amazon.in platform may mistakenly believe that the “ROOH AFZA” product coming from Hamdard Laboratories (Waqf), Pakistan, is related to or coming from the plaintiffs.
The court observed that since vendors’ information is unknown, this might negatively affect the customers and therefore http://www.amazon.in as a middleman is required to include the names of vendors, their addresses, and other pertinent information on the product listings.
In light of these facts, the Court is adamant that the plaintiffs have shown a prima facie case and there is a prima facie argument for granting an ad-interim injunction. The balance of convenience is in the plaintiff’s favour.The court stated that if a restraining order is not issued at this time, the plaintiffs will suffer gave and personal injury.
The court went on to direct that the listings of ‘ROOH AFZA’ that are infringing items on the http://www.amazon.in website needs to be removed within 48 hours of notice.
Regarding Defendant No. 1, if in case there are any more listings and the plaintiffs discover items that infringe on their trademark “ROOH AFZA,” the same will be brought to the defendant No. 1’s attention, and the same will must be removed in line with information technology 2021 rules for (intermediary guidelines and digital media ethics code) modified in 2022.
DUCTUS EDGE 