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8 July, 2019 + CS (OS) $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 30th May, 2019 Date of decision : 8th July, 2019 + CS (OS) 410/2018 AMWAY INDIA ENTERPRISES PVT. LTD. …...Plaintiff Through: Mr. Sudhir Chandra, Senior Advocate with Mr. Sohan Singh Rana, Mrs. Bindra Rana, Ms. Priya Adlakha, Ms. Tulip De & Mr. Ashish Sharma, Ms. Ruhee Passi, Advocates. (M:9818202368) versus 1MG TECHNOLOGIES PVT. LTD. & ANR. .....Defendants Through: Mr. Sagar Chandra, Ms. Ishani Chandra and Ms. Shubhie Wahi, Advocates for D-1 (M:8130910708) Mr. Sudarshan Rajan and Mr. Ramesh Rawat, Advocates for D-2. (M:9990865829) WITH + CS (OS) 453/2018 AMWAY INDIA ENTERPRISES PVT. LTD. …...Plaintiff Through: Mr. Sudhir Chandra, Senior Advocate with Mr. Sohan Singh Rana, Mrs. Bindra Rana, Ms. Priya Adlakha, Ms. Tulip De & Mr. Ashish Sharma, Ms. Ruhee Passi, Advocates. (M:9818202368) versus ADINATH ENTERPRISES & ORS. .....Defendants Through: Mr. Siddharth Batra, Ms. Garima CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 1 of 225 Sehgal and Mr. Vishwajeet Arora, Advocates for D-2 & 3. Mr. Prateek Tewari, Advocate for D-8 (M-8800576518) Mr. Dayan Krishnan, Senior Advocate, with Mr. Nitin Sharma, Mr. Sanjeev Seshadri & Ms. Disha Sharma, Advocates for D-9. (M:9810621272) WITH + CS (OS) 480/2018 AMWAY INDIA ENTERPRISES PVT. LTD. …...Plaintiff Through: Mr. Rajiv Nayar, Senior Advocate, with Ms. Priya Kumar, Mr. C.D. Mulherkar, Mr. Shailabh Tiwari, Mr. Tejas Chhabra and Mr. Chanakya Diwedi, Advocates (M:9716989180) versus PIONEERING PRODUCTS AND ORS. .....Defendants Through: Mr. Sandeep Sethi, Senior Advocate, with Mr. Prince Pawaiya, Ms. Prema Arora, Ms. Peri Surya Yashodhara and Mr. Karan Chopra, Advocates, GNP Legal, for Defendant no.3 (9549124005) Mr. Saikrishna Rajagopal, Ms. Sneha Jain, Ms. Savni Dutt, Mr. Devvrat Joshi, Ms. Nilofar Absar and Ms. Abhiti Vachher, Advocates, for Defendant no.4. (9810621272) Ms. Amita Gupta, Advocate, for Defendant No.1 (9900064366) WITH CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 2 of 225 + CS (OS) 531/2018 AMWAY INDIA ENTERPRISES PVT. LTD. …...Plaintiff Through: Ms. Priya Kumar, Mr. Shailabh Tiwari, Mr. C.D. Mulherkar, Mr. Tejas Chhabra, Mr. Chanakya Diwedi, Mr. Anand Chichra Advocates. versus FLIPKART INTERNET PVT. LTD AND ORS. .....Defendants Through: Mr. Darpan Wadhwa, Senior Advocate with Mr. Ankur Sangal, Ms. Sucheta Roy, Advocates for D-1 (M:9654592881) WITH + CS (OS) 550/2018 AMWAY INDIA ENTERPRISES PVT. LTD. …...Plaintiff Through: Mr. Sudhir Chandra, Senior Advocate with Mr. Sohan Singh Rana, Mrs. Bindra Rana, Ms. Priya Adlaka, Ms. Tulip De & Mr. Ashish Sharma, Ms. Ruhee Passi, Advocates. (M:9818202368) versus BRIGHT LIFECARE PVT. LTD. & ANR. .....Defendants Through: Mr. Sagar Chandra, Ms. Ishani Chandra and Ms. Shubhie Wahi, Advocates for D-1 (M:8130910708) Mr. Sudarshan Rajan and Mr. Ramesh Rawat, Advocates for D-2. (M:9990865829) CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 3 of 225 WITH + CS (OS) 75/2019 MODICARE LTD. …...Plaintiff Through: Mr. Amit Sibal, Senior Advocate with Ms. Pooja Dodd, Mr. Saksham Dhingra, Mr. Vinay Tripathi, Ms. Aditi Menon and Mr. Aman Singhal, Advocates (M:9811045646) versus AMAZON SELLER SERVICES PRIVATE LIMITED & ORS. .....Defendants Through: Mr. Saikrishna Rajagopal, Mr. Sidharth Chopra, Ms. Sneha Jain, Ms. Savni Dutt, Mr. Devvrat Joshi, Ms. Nilofar Absar and Mr. Abhijit Vachher, Advocates for Defendant No.1 (M:9810621272) AND + CS (OS) 91/2019 ORIFLAME INDIA PVT. LTD. …...Plaintiff Through: Mr. Balbir Singh, Senior Advocate, with Mr. Mahesh B. Chhibber, Mr. Karan Chopra, Ms. Mehak Khanna & Mr. S.N. Thyagrajan, Advocates (M:9818430581) versus DINENDER JAIN & ORS. .....Defendants Through: Mr. Jayant Mehta, Mr. Manav Kumar, Ms. Nupur & Mr. Sajal Jain Advocate for D-2 (M:9810233743) Mr. Saikrishna Rajagopal, Mr. CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 4 of 225 Sidharth Chopra, Ms. Sneha Jain, Ms. Savni Dutt, Mr. Devvrat Joshi, Ms. Nilofar Absar and Mr. Abhijit Vachher, Advocates for Defendant No.6 (M:9810621272) Mr. Waize Ali Noor (Central Govt. Pleader) for UOI (M:8527837602) CORAM: JUSTICE PRATHIBA M. SINGH JUDGMENT Prathiba M. Singh, J. I.A. 11335/2018 (u/Order XXXIX Rules 1 and 2) in CS(OS) 410/2018 CS(OS) 453/2018 and I.A. 12419/18 (for stay) and 14613/18 (u/O VII Rule 11 CPC) I.A.13159/2018 (u/Order XXXIX Rules 1 and 2) in CS(OS) 480/2018 I.A.14402/2018 (u/Order XXXIX Rules 1 and 2) in CS(OS) 531/2018 I.A. 14858/2018 (u/Order XXXIX Rules 1 and 2) in CS(OS) 550/2018 I.A.1733/2019 (u/Order XXXIX Rules 1 and 2) in CS(OS) 75/2019 I.A.2238/2019 (u/Order XXXIX Rules 1 and 2) in CS(OS) 91/2019 S.No. Contents Para No. A. INTRODUCTION 1 - 3 B. CASE OF THE PLAINTIFFS B1. By M/s Amway India Enterprises Pvt. Ltd. in 4 - 21 CS(OS) 410/2018, CS(OS) 453/2018, CS(OS) 480/2018, CS(OS) 531/2018 and CS(OS) 550/2018 B2. By Modicare Ltd. in CS(OS) 75/2019 22 - 32 B3. By Oriflame India Pvt. Ltd. in CS(OS) 91/2019 33 - 42 C. CASE OF THE DEFENDANTS CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 5 of 225 C1. By Amazon Seller Services Pvt. Ltd. in CS(OS) 43 – 61 480/2018, CS(OS)75/2019 and CS(OS) 91/2019 C2. By 1MG Technologies Pvt. Ltd. in CS(OS) 62 - 63 410/2018, and by Bright Lifecare Pvt. Ltd. in CS(OS)550/2018 C3. By Flipkart Internet Pvt. Ltd. in CS(OS) 64 - 66 531/2018 C4. By Jasper Infotech Pvt. Ltd. in CS(OS) 550/2018 67 - 72 C5. By other sellers 73 - 76 D. SUMMARY OF LOCAL COMMISSIONERS‟ 77 REPORTS E. SUBMISSIONS BY COUNSELS 78 – 79 E1. Submissions of the Plaintiffs 80 – 114 E2. Submissions of the Defendants 115 – 138 E3. Stand of the Union of India 139 – 141 F. ANALYSIS AND FINDINGS 142 F1. Question (i) - Whether the Direct Selling 143 – 174 Guidelines, 2016 are valid and binding on the Defendants and if so, to what extent? F2. Question No. (ii) - Whether the sale of the 175- 287 Plaintiffs‟ products on e-commerce platforms violates the Plaintiffs‟ trademark rights or constitutes misrepresentation, passing off and results in dilution and tarnishes the goodwill and reputation of the Plaintiffs‟ brand? CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 6 of 225 F3. Question (iii) - Whether the e-commerce 288 – 305 platforms are “intermediaries” and are entitled to the protection of the safe harbour provision under Section 79 of the Information Technology Act and the Intermediary Guidelines of 2011? F4. Question (iv) – Whether e-commerce platforms 306 – 318 such as Amazon, Snapdeal, Flipkart, 1MG, and Healthkart are guilty of tortious interference with the contractual relationship of the Plaintiffs with their distributors/direct sellers? G. CONCLUSIONS AND RELIEF 319 - 337 A. INTRODUCTION 1. The old adage, which translates to ―with great power comes great responsibility‖, popularised by a famous movie based on a comic book series, in modern day world would be applicable to e-commerce platforms, which have penetrated all forms of trade, commerce and businesses. The contribution of e-commerce in providing accessible global platforms for traders, craftsmen, traditional artists, home designers, housewives etc., along with the credit for creation of large infrastructural facilities such as warehouses, transportation, etc., as also employment for thousands of people, is well acknowledged. However, there are certain safeguards that need to be followed so as to ensure that existing businesses and trades are not adversely impacted by the growth of e-commerce, without requisite checks in place. The present cases highlight the conflict that can arise between one such existing form of business/trade viz., Direct Selling Businesses and e-commerce platforms. The legal complexities in this CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 7 of 225 conflict involve Constitutional issues, intellectual property rights, information technology laws, consumer protection laws, contractual laws, law of torts, and other applicable guidelines. 2. A batch of seven suits raising overlapping issues were heard together. The same have been filed by three Plaintiffs viz., M/s Amway India Enterprises Pvt. Ltd. (hereinafter, ‗Amway‘), M/s Modicare Ltd. (hereinafter, ‗Modicare‘) and M/s Oriflame India Pvt. Ltd. (hereinafter, ‗Oriflame‘) against various entities who are either running e-commerce platforms or are sellers on the said platforms, in the following manner: CS(OS) 410/2018 and I.A. No.11335/2018 PLAINTIFF DEFENDANTS Amway India Enterprises Pvt. D1 1MG Technologies Pvt. Ltd. – Ltd. which runs the e-commerce website, www.1mg.com (hereinafter, ‗1MG‘) D2 Ghantakarn International CS(OS) 453/2018 and I.A.s 12419/18 and 14613/18 PLAINTIFF DEFENDANTS Amway India Enterprises Pvt. D1 Adinath Enterprises Ltd. D2 Beant Healthcare D3 Beant Buildwell (P.) Ltd. D4 Vivid Solutions D5 Ravinder & Co. D6 Raman Enterprises D7 Xecute India D8 Aarjav International D9 Jasper Infotech Pvt. Ltd. – which runs the e-commerce website www.snapdeal.com (hereinafter, ‗Snapdeal‘) CS(OS) 480/2018 and I.A.13159/2018 PLAINTIFF DEFENDANTS CS (OS) 410/2018, 453/2018, 480/2018, 531/2018, 550/2018, 75/2019 & 91/2019 Page 8 of 225 Amway India Enterprises Pvt. D1 Pioneering Products Ltd. D2 Black Olive Enterprises D3 Cloudtail India Pvt. Ltd. D4 Amazon Seller Services Pvt. Ltd. – which runs the e-commerce platform www.amazon.in (hereinafter, ‗Amazon‘) CS(OS) 531/2018 and I.A.
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