Flipkart directed on “latching on” of unauthorized sellers
Modern Mold Plast Pvt. Ltd. & Anr v. Flipkart Internet Pt. Ltd. & Ors.
Written by: Adv. Megha Harshwal & Adv. Manoj Soni
The present suit has been filed under Section 134 of the Trade Marks Act, 1999 and Sections 51 and 55 of the Copyrights Act, 1957 for permanent and mandatory injunction restraining passing off of trademark, infringement of copyright, delivery up, damages, rendition of accounts, etc.
Learned counsel appearing for the plaintiffs submits that the plaintiffs since 2009 has been are carrying on their business for the goods under their trademarks/labels “MAHARAJA”, and other MAHARAJA formative trademarks, including, but not limited to, MODERN MAHARAJA, MUKUT MAHARAJA, METRO MAHARAJA and “OMAHARAJA”.
It is further submitted that with respect to the rights of the plaintiffs in their art works in the said trademarks/ label, the plaintiffs ‟original artistic work has become distinctive, therefore, the plaintiffs are further protected under the Copyrights Act, 1957, as well.
It is submitted that plaintiffs are carrying on their business activities under their trademarks/labels on the internet through its own interactive website, i.e., https://maharajamoldedfurniture.com as well as through other websites, including, Amazon, Flipkart, etc.
The suit was primarily directed against the Defendant No.1, i.e., Flipkart Internet Pvt. Ltd., It is submitted that the plaintiffs have many listings on the site of the Defendant No.1, i.e., Flipkart. However, on account of the latching-on feature of Flipkart, other sellers, who are not selling the genuine “MAHARAJA” products of the plaintiffs, have latched-on to the listings of the plaintiff.
What is Latching on?
If your product is already available on Flipkart, you have the option to seamlessly link or ‘Latch’ onto the existing product listing. This allows you to make your product live on the platform without the need to create a separate listing. Further Latching on allows a seller, who is, let’s say selling garments, to see which is the bestselling product in that category. After that, the seller can ‘latch’ to the listing of the product as an alternate seller of that product.
Plaintiff’s Submission:
- That Defendant Nos. 2 i.e. AKS Trading and 3 i.e. NS Marketing are selling products, which are not genuine products of the plaintiffs, however, they have latched-on to the listings of the plaintiffs.
- That Defendant Nos. 2 and 3 are sellers on the platform of Defendant No. 1, i.e., www.flipkart.com , who tag themselves as alternative sellers of the goods of the plaintiffs, in the very own product listing/display of the plaintiffs on www.flipkart.com, where they sell their products at further discounts.
- That when the Defendant Nos. 2 and 3 sell their products, the invoices, which are issued by them, are in the name of the plaintiffs, as if the products sold by Defendant Nos. 2 and 3, are the products of the plaintiffs.
- That Defendant Nos. 2 and 3, do not have a separate listing on Flipkart, but have latched on to the listing of the plaintiffs.
That considering the submission made before this Court, this Court is of the view that the sale of the products by Defendant Nos. 2 and 3, to pass off their products, as those emanating from the plaintiffs, cannot be allowed. This Court is of the considered view that sale by Defendant Nos. 2 and 3, by latching-on to the listings of the plaintiffs, and selling their products, as emanating from the plaintiffs, cannot be allowed.
The Court further went on to state that the feature of latching-on cannot be used to either sell counterfeit products, or to mislead the gullible public into purchasing products, as emanating from a particular source, when they do not so originate from the said source. Accordingly, this Court is of the view that Defendant No.1, i.e., Flipkart, ought to extend its “brand gating” feature, as per the Flipkart Policies, to the listings of the plaintiff.
What is Brand Gating?
Brand Gating means only authorized sellers can sell particular branded products. You can request to have your brand gated on Flipkart. Flipkart does it to make sure that no one is selling unauthorized products on their platform and that the sellers have approval from the brands or the government to sell them.
Accordingly, it is directed that the plaintiffs shall provide their Flipkart Serial Nos. (FSNs) to learned counsel appearing for defendant No.1, i.e., Flipkart. Upon receipt of the FSNs from the plaintiffs, the Defendant No.1, i.e., Flipkart, would take steps to not permit any latching-on of unauthorized sellers on the plaintiffs‟ listings. Whenever any seller seeks to sell the plaintiffs‟ products on Flipkart using the latching-on feature, Flipkart would examine the matter, at its own level. If any ambiguity arises, it would be free to seek a confirmation from the plaintiffs, in case they want the said products to be sold.
It is further directed that the said position shall enure in respect of all the sellers, who may seek to latch on to the plaintiffs‟ listing. If any latching-on is noticed by the plaintiffs, Flipkart shall be immediately notified. Upon receiving any notification from the plaintiffs, Flipkart shall take steps to disable the latching-on feature, as expeditiously as possible.