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Latching On Is Impermissible Under The Trademark Law

With advent of new technology, life becomes easy But nothing comes without a cost. New technology brings in new challenges too.

E marketing is no more exception. Amazon, Flipkart etc are result of new era which made life easy. But also proved new opportunities for carrying out illegal activities too. Latching on other's brand name and other's product image is burning example of this. How to handle this new problem.

In order to understand this problem , it is necessary to know as to how e-markeing happens through e-marketing websites? What could be normal mode of selling a product through e-marketing. The business man has to display its product on the e marketing cite in order to attract the customer.

What happens when a e marketing web site allows third party sellers to use images of products, which actually belong to some other party.

What may be liability of such sellers for using the images of third party product? What remedy may be available to such right holder?

Whether such latching on of right holders name and images of the right holders product by the third party is permissible under the law?

If not permissible in law, then how the right of a right holder can be protected? Whether plaintiff would be entitled to the relief of Infringement of trademark?

Or whether the plaintiff would have to take recourse of action of Passing off, which is a common law remedy?

One of such case came up before the Hon'ble High Court of Delhi recently in Suit bearing CS(Comm) 492 of 2022 titled as Akash Aggarwal Vs Flipkart Internet Private Limited and Others.

The fact of the case was that the Plaintiff was carrying on its business under the Trademark V Tradition. The Plaintiff was selling apparels on the e marking website namely Flipkart.

This case of the Plaintiff was that Flipkart was encouraging and allowing third-party sellers to 'latch on' and use the mark 'V Tradition', along with the photographs of the Plaintiff's products, on the said platform.

The subject matter suit was filed seeking reliefs against the e marketing website Flipkart from permitting third-party sellers to 'latch on' to the name and the products of the plaintiff.

The plaintiff sought the relief of inter alia are restraining Flipkart from allowing any person or party to portray itself and/or conduct its business on the website of Defendant No. 1 as 'more sellers' of goods offered for sale by the Plaintiff on his own product listings on the website of Defendant No. 1 under the Plaintiff's Trademarks and from enabling the unauthorized sellers from using the product images of the Plaintiff's product listings and name.

The term latching on by the defendant , used by the plaintiff in the present case was the unauthorized and illegal use of images of the plaintiff's product and plaintiff's name by the defendants. The Flipkart was reflecting the names of other entity as more sellers of the plaintiff's product.

Plaintiff was aggrieved by this fact that Flipkart was not only allowing other third entity to use the name and images of the product but also showing them as more sellers of the plaintiff's product. Thus Flipkart was guilty of latching on.

In this case the plaintiff has put on record the documents to show that when ever a seller wishes to place some listing for particular category of product, then best seller products are being reflected.

In this process the images and name of plaintiff's products are allowed to be added on the listing page of third seller without the consent of the plaintiff. Thus Flipkart was allowing other sellers to latch on name and images of plaintiff's product without its permission.

The Hon'ble High Court of Delhi observed that such kind of latching on feature is not permissible under the passing off. It is submitted that common law right of a right holder is a very right.

In such kind of violation is well protected under the Trademarks Law. The Right holder can seek the relief of passing off against such latching off. It would be considered as unauthorized use of Plaintiff's trademark without consent.

Accordingly the Hon'ble High Court of Delhi was pleased to grant relief against such latching on activities. The Defendant No.1 namely Flipkart was also directed to disable this feature.

Thus in this case we have seen that the Hon'ble High Court of Delhi has protected the plaintiff against such latching on activities by the violators.

This is but natural that law makers can not envisage all future incidences , while making the law. This is why there has always been gap between the law makers and law brakers. Now it is the responsibility of judiciary to fill up this gap and so has rightly been done in this case .

Case Law Discussed:
Case Title: Akash Aggarwal Vs Flipkart Internet Private Limited And Others
Date of Judgment: 02.08.2022
Case: CS(Comm) 492 Of 2022
Name of Hon'ble Court: High Court Of Delhi
Name of Hon'ble Judge: The Hon'ble Justice Prathiba M Singh

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi
[email protected], 9990389539

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