Surana&Surana and Shaastra IITM Intellectual Property Law Moot Court Competition,2018

TEAM CODE: S21019

Surana&Surana and Shaastra IIT Madras Intellectual Property Law Moot Court Competition, 2021

BEFORE THE HON’BLE MADRAS HIGH COURT

ORIGINAL CIVIL JURISDITION

CS No. 31/2021

LIVELONG Plaintiff

v.

BUYNOW AND FASTGRAM……………………………... Respondent

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES IN THE MADRAS HIGH COURT

MEMORIAL ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

Contents
INDEX OF AUTHORITIES 7
1. CASES REFERRED 7
2. BOOKS REFERRED 10
3. JOURNALS & REPORTS 10
4. RULES/GUIDELINES AND LEGISLATIONS 10
5. ONLINE SOURCES 11
STATEMENT OF JURISDICTION 12
STATEMENT OF FACTS 13
STATEMENT OF ISSUES 14
Whether the suit is maintainable before the High Court of Madras? 14
Whether Direct Selling Guidelines are valid and binding on BuyNow and if so, to what extent?
14
Whether Fastgram is within the ambit of "Intermediaries" and is entitled to protection under
the “safe harbor” provisions enumerated under the Information Technology Act, 2000 and
the Intermediary Guidelines of 2011? 15
Whether BuyNow is guilty of tortious interference with the contractual relationship
established with Livelong’s direct sellers/distributors? 15
Whether ex parte ad interim injunction should be granted? 16
SUMMARY OF PLEADINGS 17
1. The suit is not maintainable before the High Court of Madras. 17
2. Direct Selling Guidelines are not valid and binding on BuyNow. 17
3. BuyNow’s sale of counterfeit products bearing the mark ‘Livelong’ using Fastgram does not
amount to an act of infringement under the Trade Marks Act, 1999. 17
4. Fastgram is within the ambit of "Intermediaries" and is entitled to protection under the “safe
harbor” provisions enumerated under the Information Technology Act, 2000 and the
Intermediary Guidelines of 2011. 17
PLEADINGS 18
Whether the suit is maintainable before the High Court of Madras? 18
1.1. It is neither the plaintiff’s nor the defendant’s residing place. 18
1.1.1. The Court should be of non-objectionable jurisdiction like Delhi or Telangana High Court.
18
1.1.2. The most appropriate forum would still be Chennai District Court and not the Madras High
Court by virtue of Section 15 of Civil Procedure Code. 18
Memorial for the Respondent
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1.1.3. eee jurisdiction to hear trademark disputes.
District Courts have the original civil 19
1.2. Madras High Court is not the appropriate forum for disputes regarding the Information
Technology Act, 1999. 19
1.2.2. Exclusion of jurisdiction of Civil Courts will apply in the present case. 19
Whether Direct Selling Guidelines are valid and binding on BuyNow and if so, to what extent?
20
2.1. Direct Selling Guidelines are merely advisory in nature. 20
2.1.1. Direct Selling Guidelines were formulated with a purpose of creating ‘model guidelines’. 20
2.1.2. The title of the document of Direct Selling Guidelines speaks for itself. 20
2.1.3. Non-adherence to or deviation from the guidelines is implicitly permissible if the
circumstances of any particular fact or law situation warrants the same. 21
2.2. Direct Selling Guidelines are not executive instructions and do not have the force of law. 21
2.2.1. Direct Selling Guidelines are not judicially enforceable since they are neither statutory in
nature nor under some provision of the Constitution. 21
2.2.2. Enforceability of Direct Selling Guidelines is redundant in the light of Consumer Protection
(Direct Selling) Rules, 2019. 21
2.2.3. Direct selling Guidelines do not impinge any rights but are rather regulatory in nature. 22
Whether BuyNow’s sale of counterfeit products bearing the mark ‘Livelong’ using Fastgram
amounts to an act of infringement under the Trade Marks Act, 1999? 22
3.1. Onus is on the Plaintiff to show that the products are indeed counterfeit. 22
3.1.1. Prima facie evidence must be scrutinized by official authorities before claiming the product
to be counterfeit. 22
3.1.2. Defendant just resold the goods bought through Livelong seller and the goods being
genuine or not is a matter of evidence. 22
3.2. BuyNow lawfully acquired the goods on sale. 23
3.2.1. Subsequent sale of the product made by the Defendant neither requires the authorisation of
the Plaintiff, nor does it infringe any of its rights. 23
3.2.2. The sale of authentic products cannot be barred in view of Section 30 of the Trade Marks
Act, 1999. 23
3.2.3. Principle of International Exhaustion would apply in the present case. 24
Whether Fastgram is within the ambit of "Intermediaries" and is entitled to protection under
the “safe harbor” provisions enumerated under the Information Technology Act, 2000 and
the Intermediary Guidelines of 2011? 24
4.1. Fastgram falls within the category of ‘Intermediary’ under IT Act, 2000 and is exempted from
liability. 25
4.1.1. Fastgram is merely an advertising medium for businesses and it has no direct control over
the sale of goods. 25
4.1.2. Fastgram has not received ‘actual knowledge’ of any unlawful act. 25
4.1.3. BuyNow was selling allegedly spurious products in its packaging and under the trademark
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of Livelong will not deprive Fastgram from 25
4.2. Fastgram has complied with the due diligence to be undertaken by intermediaries under the IT
(Intermediary Guidelines) Rules, 2011. 26
4.2.1. Fastgram acceding to the IT (Intermediary Guidelines) Rules, 2011 have confirmed the
guidelines in its services. 26
4.2.2. Fastgram’s actions are protected under the ‘Safe Harbour’ Provisions of the IT Act, 2000.
26
4.2.3. Fastgram should be permitted for non-joinder 27
5. Whether BuyNow is guilty of tortious interference with the contractual relationship
established with Livelong’s direct sellers/distributors? 27
5.1. BuyNow’s actions are protected under the defence of Justification. 27
5.1.1. No reasonable grounds made out for the breach of contract between Livelong and its Direct
Sellers. 27
5.1.2. BuyNow has not induced any person by acts of communication as envisaged under the first
condition. 28
5.1.3. Defendant being a lawful acquirer of goods, has not committed any unlawful act on any
person or property. 28
5.1.4. BuyNow has not persuaded any third party to commit any unlawful act. 28
5.2. Claims against BuyNow do not have corroborating evidence for proof of tortious interference. 28
5.2.1. Inducing a breach of contract between the Direct Selling Entities and its sellers/distributors
has to be proved, a matter of evidence, and cannot be inferred. 29
5.2.2. The mere fact that the Defendant may have had knowledge of the Code of Ethics of the
DSEs is insufficient to lay a claim of tortious interference. 29
6. Whether ex parte ad interim injunction should be granted? 29
6.1. Plaintiff has not provided sufficient cause for grant of such injunction. 29
6.1.1. Extreme care and caution in granting ex parte ad interim injunctions or stay orders is
required. 29
6.1.2. Gravity of the situation does not qualify for such injunction. 30
6.1.3. It would result in greater mischief if such grant of injunction is admitted by the Court 30
6.1.4. Plaintiff has not shown utmost good faith to avail the benefit of such injunction 30

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INDEX OF AUTHORITIES

1. CASES REFERRED

INDIAN CASES

SUPREME COURT CASES

S NAME OF THE CASE CITATION PG

L. .
N NO
O. .
1. Sohan Lal Passi v. P. Sesh Reddy and Others 1996 SCC (5) 21 16

2. S.D. Containers Indore v. M/S. Mold Tek SLP (C) No. 16

Packaging Ltd. 11488 of 2020
SC
3. Dhodha House vs. S.K Maingi App (Civ) 6248 17
of 1997 SC
4. Raja Soap Factory v. S. P Shantha Raj and Civ. App. 4982 17
Ors. of 2008, SC
5. State Bank of India v. ChanderKlani And Anr. FAO. No. 17
547/2018, SC
6. State of A.P. v. Majeti Laxmi Kanth Rao Civ. App. 17
No.3637 of 1988,
SC
7. R. Sai Bharati v. Jayalalitha and Ors. SLP (Crl.,) N. 18
477 of 2002
8. RamanaDayaram Shetty v. International Civil Appeal No. 18
Airport Authority of India and Ors, 895 of 1978, S. C
9. Gulf Goans Hotels Co. Ltd. v. Union of India (2014) 10 SCC 19
673
10 Syndicate Bank vs. Ramachandran Pillai and (2011) 15 SCC 19
. Ors. 398
11 Union of India vs K. P. Joseph And Ors. 1973 SCR (2) 19
. 752

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12 Narendra Kumar Maheshwarieee
vs. UOI &Ors. AIR 1989 SC 19
. 2138
13 Ratnagiri Nagar Parishad v Gangaram CIVIL APPEAL 21
. Narayan Ambekar NO. 2412/2020
SC
14 Shreya Singhal v Union of India W.P. (Crim) No. 23,
. 167 of 2012 S.C 24
15 Ramrameshwari Devi and ors. v. Nirmala Devi Civil Appeal 27
. and ors. No.49/2011 SC
16 Shiv Kumar Chadha Vs. Municipal (1993) 3 SCC 16 27
. Corporation of Delhi
17 Bloom Dekor Limited v/s. Subhash Himatlal MANU/SC/ 28
. Desai and ors 0858/1994

HIGH COURTS CASES

S NAME OF THE CASE CITATION PG. NO.

L.
N
O.
1. VidadalaHaridhanababuv. v.  N. T. AIR 1990 AP 18
Ramarao 20 FB
2. M. S. Buildwell Pvt. Ltd v. Rail Land W.P (C) 18
Development Authority 3332/2012
D.H.C
3. Amazon Sellers Pvt. Ltd. v Amway India FAO (OS) 19, 21
Enterprises Pvt. Ltd and 133/2019 and
Ors. CM APPL.
32954/2019
4. J. P. Gupta v. National Insurance Co. Ltd. 2006 ACJ 652 20

6. M/s. Tata Engineering and Locomotive Co. Sales Tax 21

Ltd. v. State of Maharashtra Reference No.
16 Of 2003
With Sales Tax
Reference No.
3 of 2008,
Bom. HC
7. Phillip Morris Products S.A v. Sameer CS (OS) No. 22
1723 of 2010

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8. Samsung Electronics Companyeee
Ltd. v. 2012 SCC 22
Kapil Wadhwa OnLine 1004

9. Antony Clement Rubin v. Janani W.P No. 20774 23

Krishnamurthy of 2018, MAD.
H.C
10 Kapil Wadhwa v. Samsung Electronics Co. FAO (OS) 24
. Ltd 93/2012

11 Christian Louboutin Sas vs Nakul Bajaj C.S (COMM) 24

. &Ors, 344/2018,
D.H.C
12 Order dated 25
. Inox Leisure Limited v. PVR Limited June 24, 2020
in RFA (OS)
26/2020
13 1998 PTC (18) 25
. Asia Industrial Technologies Ltd. v. Ambience (DB)
Space Sellers Ltd.

14 25
. Lindsay International Pvt. Ltd. and Ors. v.
Laxmi Niwas Mittal and Ors.

15 2020 Indlaw 37
. Amazon Seller Services Private Limited and DEL 796
others v Amway India Enterprises Private
Limited and others

16 AIR 1975 AP 28
.  Nawab Mir Barkat Alikhan v. Nawab 187
ZulfiquarJah Bahadur

FOREIGN CASES

U.S. CASES

S NAME OF THE CASE CITATION PG

L. .
N NO
O. .
1 Kirtsaeng v. John Wiley & Sons, Inc. 568 US S.C (2013) 20
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2. BOOKS REFERRED

SL . DETAI
NO. LS
1.
Restatement Of Torts (1939), Introduction, at p.5.

3. JOURNALS & REPORTS

SL. DETAI
N O. LS
1.
Lab Recognition Scheme 2018, Bureau of Indian Standards

2. Ariel Katz, The First Sale Doctrine and the Economics of Post-Sale Restraints, 
Brigham Young University Law Review 2014 BYU L. Rev. (2014)

4. RULES/GUIDELINES AND LEGISLATIONS

SL NAME
.
N
O.
1 The Trade Marks Act, 1999, No.47, Acts of Parliament, 1999
. (India), §134
2 Direct Selling Guidelines, 2016, G.S.R. 1013(E), Department
. of Consumer Affairs (India)
3 Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999
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4 Sale of Goods Act, 1930, No. 3, Acts of Parliament, 1930
. (India) §19
5 The Information Technology Act, No. 21, Acts of
. Parliament, 2000 (India), §79
6 The Information Technology (Intermediaries guidelines) Rules,
. 2011, G.S.R. 314(E), Acts of Parliament (India), §3

5. ONLINE SOURCES

SL NAME
.
N
O.
1 https://consumeraffairs.nic.in/organisation-and-units/
. division/internal-trade/trade
2 SCC online resources, http://www.scconline.com
.
3 Heinonline resources, http://www.heinonline.com
.
4 Jstor online resources, http://www.jstor.com
.
5 Ssrn online resources, http://www.ssrn.com
.
6 Supreme Court Judgements, http://www.judic.nic.in
.
7 Westlaw online resources, http://www.westlaw.com
.
8 Lexis NexisAcademica,
. http://www.lexisnexis.com/academica
9 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal
.

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STATEMENT OF JURISDICTION

The original civil jurisdiction of Madras High Court is invoked and has been approached
under Section 134 of the Trademarks Act, 1999 read with Section 9 of the Civil Procedure
Code, 1908. The application for ex-parte interim injunction is heard by the court under
Rule 3 of Order XXXIX of the Civil Procedure Code, 1908. This case presents an
opportunity for the Respondent to be heard and make a representation in this court.

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STATEMENT OF FACTS

Livelong is an Indian company headquartered in New Delhi. It mainly deals with the supply of health
products and services. It sells its products on its website. It also has a mobile application that provides
additional assistance. They also sell their products through direct sellers, with whom they have a Direct
Selling Contract. Besides containing the terms and conditions of the distribution, marketing, and sale of
Livelong’s products, the contract also acts as an assurance of quality products. Livelong is the
registered proprietor of a word and device mark bearing the term ‘Livelong’ under the relevant statute.

BuyNow, a Hyderabad - based company, started selling ‘Livelong’ products through Fastgram, a social
networking platform, since May 2020. Fastgram, using its demographic data, helps businesses promote
their products towards appropriate parties through advertisements in exchange for a fee. BuyNow has a
subscription to this feature, which allowed them to sell a Livelong product to Ms. Nina Talwar, a
resident of Chennai. Disappointed with the received product, she complained to Livelong’s grievance
forum. When Livelong collected the relevant details, it realised that the product was being sold by
BuyNow, without its authorisation, through Fastgram. Livelong, after doing its own investigation,
concluded that the products sold by BuyNow were counterfeit.

Livelong immediately issued a Cease and Desist Notice dated 5.12.2020 to BuyNow claiming product
tampering, trademark infringement and violation of the Direct Selling Guidelines 2016. It requisitioned
BuyNow to immediately refrain from selling Livelong products and take down all the relevant posts
from Fastgram. BuyNow denied Livelong’s contentions and stated that it merely procured Livelong’s
products from one of its registered Direct Sellers and sold it vide Fastgram.

Livelong then issued a legal notice to Fastgram to immediately restrain BuyNow from selling the
impugned products through its platform. Fastgram replied, stating that it is an intermediary as defined
by the Information Technology Act, 2000 and that it had no direct engagement with any concerned
transaction. However, it did agree to comply with the demands of Livelong, provided a Court Order is
produced to that effect.

Livelong has a significant reputation among its consumers. It also has thousands of subscribers in its
social media handles. Fastgram, on the other hand, has over 120 million users in India alone, with over
500 million stories shared daily. A large number of users complete a purchase based on the ads
displayed, owing mainly to the captivating features of Fastgram. Therefore, the presence of spurious
products on such a popular platform would have a detrimental impact on Livelong. Livelong has filed a
suit for trademark infringement before the Hon’ble High Court of Madras seeking appropriate relief
along-with an application seeking an ex parte ad interim injunction against BuyNow, and also making
Fastgram as a party to the infringement suit.

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STATEMENT OF ISSUES

Whether the suit is maintainable before the High Court of Madras?

1.1. It is neither the plaintiff’s nor the defendant’s residing place.

1.1.1. The Court should be of non-objectionable jurisdiction like Delhi or Telangana High Court.
1.1.2. The most appropriate forum would still be Chennai District Court and not the Madras High
Court by virtue of Section 15 of Civil Procedure Code.
1.1.3. District Courts have the original civil jurisdiction to hear trademark disputes.

1.2. Madras High Court is not the appropriate forum for disputes regarding the
Information Technology Act, 1999.

1.2.1. Either Adjudication Officer or Cyber Appellate Tribunal that are established under the IT Act
are the appropriate forum for adjudicating these disputes.
1.2.2. Exclusion of jurisdiction of Civil Courts will apply in the present case.

Whether Direct Selling Guidelines are valid and binding on BuyNow and if so,
to what extent?

2.1. Direct Selling Guidelines are merely advisory in nature.

2.1.1. Direct Selling Guidelines were formulated with a purpose of creating ‘model guidelines’.
2.1.2. The title of the document of Direct Selling Guidelines speaks for itself.
2.1.3. Non-adherence to or deviation from the guidelines is implicitly permissible if the
circumstances of any particular fact or law situation warrants the same.

2.2. Direct Selling Guidelines are not executive instructions and do not have the force of
law.
2.2.1. Direct Selling Guidelines are not judicially enforceable since they are neither statutory in
nature nor under some provision of the Constitution.
2.2.2. Enforceability of Direct Selling Guidelines is redundant in the light of Consumer Protection
(Direct Selling) Rules, 2019.
2.2.3. Direct selling Guidelines do not impinge any rights but are rather regulatory in nature.

Whether BuyNow’s sale of counterfeit products bearing the mark ‘Livelong’

using Fastgram amounts to an act of infringement under the Trade Marks Act, 1999?
3.1. Onus is on the Plaintiff to show that the products are indeed counterfeit.

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3.1.1. Prima facie evidence must be scrutinized by official authorities before claiming the product
to be counterfeit.
3.1.2. Defendant just resold the goods bought through Livelong seller and the goods being genuine
or not is a matter of evidence.
3.1.3. Preconceived notion of the products being counterfeit should be rendered inadmissible.

3.2. BuyNow lawfully acquired the goods on sale.

3.2.1. Subsequent sale of the product made by the Defendant neither requires the authorisation of
the Plaintiff, nor does it infringe any of its rights.
3.2.2. The sale of authentic products cannot be barred in view of Section 30 of the Trade Marks
Act, 1999.
3.2.3. Principle of International Exhaustion would apply in the present case.

4. Whether Fastgram is within the ambit of "Intermediaries" and is entitled to protection

under the “safe harbor” provisions enumerated under the Information Technology Act,
2000 and the Intermediary Guidelines of 2011?
4.1. Fastgram falls within the category of ‘Intermediary’ under IT Act, 2000 and is
exempted from liability.
4.1.1. Fastgram is merely an advertising medium for businesses and it has no direct control over
the sale of goods.
4.1.2. Fastgram has not received ‘actual knowledge’ of any unlawful act.
4.1.3. BuyNow was selling allegedly spurious products in its packaging and under the trademark of
Livelong but it will not deprive Fastgram from the ambit of intermediary.

4.2. Fastgram has complied with due diligence to be undertaken by intermediaries under the
IT (Intermediary Guidelines) Rules, 2011.
4.2.1. Fastgram acceding to the IT (Intermediary Guidelines) Rules, 2011 have confirmed the
guidelines in its services.
4.2.2. Fastgram’s actions are protected under the ‘Safe Harbour’ Provisions of the IT Act, 2000.
4.2.3. Fastgram should be permitted for non-joinder.

5. Whether BuyNow is guilty of tortious interference with the contractual relationship

established with Livelong’s direct sellers/distributors?
5.1. BuyNow’s actions are protected under the defence of Justification.
5.1.1. No reasonable grounds made out for the breach of contract between Livelong and its Direct
Sellers.
5.1.2. BuyNow has not induced any person by any acts of communication as envisaged under the
first condition.
5.1.3. Defendant being a lawful acquirer of goods, has not committed any unlawful act on any
person or property.
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5.1.4. BuyNow has not persuaded any third party to commit any unlawful act.

5.2. Claims against BuyNow do not have corroborating evidence for proof of tortious
interference.
5.2.1. Inducing a breach of contract between the Direct Selling Entities and its sellers/distributors
has to be proved, a matter of evidence, and cannot be inferred.
5.2.2. The mere fact that the Defendant may have had knowledge of the Code of Ethics of the DSEs
is insufficient to lay a claim of tortious interference.

6. Whether ex parte ad interim injunction should be granted?

6.1. Plaintiff has not provided sufficient cause for grant of such injunction.
6.1.1. Extreme care and caution in granting ex parte ad interim injunctions or stay orders is
required.
6.1.2. Gravity of the situation does not qualify for such injunction.
6.1.3. It would result in greater mischief if such grant of injunction is admitted by the Court.
6.1.4. Plaintiff has not shown utmost good faith to avail the benefit of such injunction.

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SUMMARY OF PLEADINGS

1. The suit is not maintainable before the High Court of Madras.

Section 134 of the Trademarks Act 1999 has provided specifically that a Suit for
infringement of a registered Trademark has to be instituted before the District Court.
Moreover, there are various other forums that are capable of trying the present suit. In
light of these alternate remedies available, the Plaintiff has improperly approached the
High court. Hence, the present plaint is not maintainable.

2. Direct Selling Guidelines are not valid and binding on BuyNow.

Direct Selling Guidelines, by their very nature, do not fall into the category of legislation,
direct, subordinate or ancillary. They have only an advisory role to play, and non-
adherence to or deviation from them is implicitly permissible. Moreover, a careful
perusal of Consumer Protect Act (Direct Selling) Rules, 2019 shows that they serve the
same purpose as Direct Selling Guidelines, making the purpose of the former redundant.
3. BuyNow’s sale of counterfeit products bearing the mark ‘Livelong’ using Fastgram does
not amount to an act of infringement under the Trade Marks Act, 1999.

The defendant has done nothing more than stocking and reselling genuine Livelong
products that the defendant lawfully acquired from the open market from the registered
Direct Sellers of Livelong. Once a trademark item is subjected to a transaction of sale, the
trademark in the goods sold is specifically exhausted in relation to the trademark holder’s
right of commercial exploitation of the specific item.
4. Fastgram is within the ambit of "Intermediaries" and is entitled to protection under the
“safe harbor” provisions enumerated under the Information Technology Act, 2000 and
the Intermediary Guidelines of 2011.

Fastgram’s functions are limited to providing an online marketplace for businesses to

advertise products and act as a platform for photo & video sharing. Fastgram falls within
the ambit of “intermediary” under the Information Technology Act and that subjected to
Section 79 (2) and (3) thereof, Fastgram is exempt from any liability arising out of
content uploaded by third parties.
5. BuyNow is not guilty of tortious interference with the contractual relationship
established with Livelong’s direct sellers/distributors.
There is no empirical data offered by the plaintiff for any possible contention of suffering
damage owing to the alleged tortuous interference. Moreover, the defendant’s acts of
reselling the lawfully acquired goods fall under the ambit of principle of exhaustion
which is recognized by India. The court must be cautious in granting ex parte ad interim
injunction should be granted only in exceptional cases.
6. Ex parte ad interim injunction should not be granted.
The plaintiff has not approached the court in good faith. Balance of convenience is not on
the side of plaintiff, and plaintiff will not suffer irreparable loss if the injunction is not
granted. Hence, the request for injunction should be denied in the present case.

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PLEADINGS

Whether the suit is maintainable before the High Court of Madras?

Section 134 of the Trademarks Act 1999 has provided that a suit for infringement of a
registered trademark has to be instituted before the District Court. 1 Subsection 2 of Section
134 provides that this Jurisdiction of the District Court for instituting a suit for infringement is
notwithstanding anything contained in the Code of Civil Procedure, 1908. This means the
ultimate and the sole jurisdiction for handling trademark disputes in its initial stage is vested
with the District court.

1.1. It is neither the plaintiff’s nor the defendant’s residing place.

1.1.1. The Court should be of non-objectionable jurisdiction like Delhi or Telangana High Court.

It is submitted that the present case should be dealt by the Court of non-objectionable
jurisdiction in the state of New Delhi where the Livelong is headquartered under Section 134
Sub section 2 of the Trademarks Act. It mandates that at the time of the institution of the suit
or other proceeding, the same has to be submitted within the local limits of the Court where
the claimant resides or conducts business or in the state of Telangana where Buynow is
situated as per the procedure established under section 20 of Code of Civil Procedure.2

1.1.2. The most appropriate forum would still be Chennai District Court and not the Madras High
Court by virtue of Section 15 of Civil Procedure Code.
Assuming Arguendo, if this Court were to rule Tamil Nadu as the place where cause of action
arose, by virtue of Section 15 of the Code of Civil Procedure, the suit should properly have
been filed in the Court of District Court of Madras, which was the Court of the lowest grade
to entertain it. Disputes related to trademarks are required to be instituted before a
Commercial Court constituted under Section 3 of the Commercial Courts, Commercial
Division and Commercial Appellate Division of High Courts Act, 2015 Act. 3 Therefore, there
is a severe lapse of procedure by the plaintiffs in the present case, and hence the petition
should not be maintainable in the present Court.
1The Trade Marks Act, 1999, No.47, Acts of Parliament, 1999 (India), §134.
2Sohan Lal Passi v. P. Sesh Reddy and Others, 1996 SCC (5) 21 (India).
3 S.D. Containers Indore v. M/S. Mold Tek Packaging Ltd., SLP (C) No. 11488 of 2020 SC (India).
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1.1.3. District Courts have the original civil jurisdiction to hear trademark disputes.

Etiam, the Supreme Court of India in the case of Dhodha House vs. S.K Maingi,4 has
observed that the District Courts have original jurisdiction irrespective of
the trademark having been registered by Trademarks Registry or the appeal against dismissal
of objection pending, the use of trademark by a registered owner of trademark amounts
to infringement. It further went on to say that once law in respect of a subject is codified, the
Courts are bound by the codified law and cannot entertain actions under equity or common
law and thereby make codified law redundant.

1.2. Madras High Court is not the appropriate forum for disputes regarding the
Information Technology Act, 1999.
1.2.1. Either Adjudication Officer or Cyber Appellate Tribunal that are established under the IT Act
are the appropriate forum for adjudicating these disputes.
It is further submitted that the disputes regarding the Information Technology Act, 2000 and
the Intermediary Guidelines of 2011 is to be determined by either adjudication officer or
cyber appellate tribunal that are established under the IT Act for adjudicating these disputes. 5
Only persons aggrieved by any decision or order of a civil court or a Cyber Appellate
Tribunal may file an appeal to the High Court on any question of fact or law arising out of
such order.6 In the present case, the Plaintiff has not utilised any of these justice dispensary
systems and has come directly to the high Court for defaming both the respondents for their
business and gain popularity.

1.2.2. Exclusion of jurisdiction of Civil Courts will apply in the present case.
In the case of State of A.P. v. Majeti Laxmi Kanth Rao,7 the apex court laid down a test to
determine the exclusion of jurisdiction of the Civil Courts. Firstly, the legislative intent to
exclude the suit is to be determined. It could be either directly or implicitly. The Court must
find and deduce the reasons for exclusion of the civil courts and the justification for it, but the
justification is not open for judicial scrutiny. After the Court is satisfied with the reasons, the
Court must determine whether the statute that bars the jurisdiction provides for an alternative
remedy. The alternative remedy must entail the functions akin to civil courts, like the power

4Dhodha House vs. S.K Maingi, App (Civ) 6248 of 1997 SC (India).
5See, Raja Soap Factory v. S. P Shantha Raj and Ors. Civ. App. 4982 of 2008, SC (India).
6See, State Bank of India v. ChanderKlani And Anr., FAO. No. 547/2018, SC (India).
7State of A.P. v. Majeti Laxmi Kanth Rao, Civ. App. No.3637 of 1988, SC (India).
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to pass the orders. In case, thereeee
is no alternative remedy available, the civil Court’s
jurisdiction cannot be excluded. In the present case, the claimants have remedies under both
district courts and the cyber appellate tribunals. Even after the availability of these remedies,
the plaintiffs have improperly approached the High Court of Madras.

Whether Direct Selling Guidelines are valid and binding on BuyNow and if so,
to what extent?

The Direct Selling Guidelines 2016 have been issued by the Ministry of Consumer Affairs,
Food & Public Distribution as guiding principles for State Governments to regulate the
business of Direct Selling and Multi-Level Marketing (MLM).8 A perusal of the Direct
Selling Guidelines reveals that they were not meant to be treated as law themselves, much
less binding law.9 A deviation from any government guidelines is implicitly permissible in
normal circumstances,10 and BuyNow’s action falls under this category.

2.1. Direct Selling Guidelines are merely advisory in nature.

2.1.1. Direct Selling Guidelines were formulated with a purpose of creating ‘model guidelines’.
The purpose of the Inter-Ministerial Committee, which framed the guidelines, was to
formulate the “model guidelines” for the States and the Union Territories so that the State
Governments can in turn set up a mechanism to monitor/supervise the activities of direct
sellers, DSEs regarding compliance for guidelines for direct sellers.11 Hence, it is submitted
that merely “model guidelines” were notified in terms of this notification.

2.1.2. The title of the document of Direct Selling Guidelines speaks for itself.
It is further submitted that the title of the enclosed document explains its nature: “Advisory to
State Governments/Union Territories: Model Framework for Guidelines on Direct Selling”
which makes it abundantly clear that the Direct Selling Guidelines were not meant to be
treated as law themselves, much less binding law. 12 Therefore, Clause 7 (6) of these “model
guidelines” is also purely advisory.13

8Internal Trade Overview, Department of Consumer Affairs, (Feb. 11, 2020, 10: 04 AM),
https://consumeraffairs.nic.in/organisation-and-units/division/internal-trade/trade.
9See, R. Sai Bharati v. Jayalalitha and Ors., SLP (Crl.,) N. 477 of 2002 (India); See, VidadalaHaridhanababuv. V. N. T.
Ramarao, AIR 1990 AP 20 FB (India); See also, Narayanan v. Emperor, 1910 11 Cri LJ 613 (India);
10RamanaDayaram Shetty v. International Airport Authority if India and Ors, Civil Appeal No. 895 of 1978, S. C (India);
M. S. BuildwellPvt. Ltd v. Rail Land Development Authority, W.P (C) 3332/2012 D.H.C (India).
11 Direct Selling Guidelines, 2016, G.S.R. 1013(E), Department of Consumer Affairs (India).
12Direct Selling Guidelines, 2016, G.S.R. 1013(E), Department of Consumer Affairs (India).
Gulf Goans Hotels Co. Ltd. v. Union of India (2014) 10 SCC 673 (India).
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2.1.3. Non-adherence to or deviation eee
from the guidelines is implicitly permissible if the
circumstances of any particular fact or law situation warrants the same.
It is contended that such guidelines, by their very nature, do not fall into the category of
legislation, direct, subordinate or ancillary. They have only an advisory role to play, and non-
adherence to or deviation from them is implicitly permissible if the circumstances of any
particular fact or law situation warrants the same.14 In the present case, BuyNow has lawfully
acquired the Livelong products from the open market and is well within its rights to resell
such products.

2.2. Direct Selling Guidelines are not executive instructions and do not have the force of law.

2.2.1. Direct Selling Guidelines are not judicially enforceable since they are neither statutory in
nature nor under some provision of the Constitution.
Guidelines that are not statutory in character or under some provision of the Constitution, are
not 'laws', and not judicially enforceable. 15 In the present case, the Direct Selling Guidelines
are neither statutory in nature nor under some provision of the Constitution. Compliance
thereof cannot be enforced through courts, and the competent authority might depart from
these guidelines where the proper exercise of discretion so warrants.16

2.2.2. Enforceability of Direct Selling Guidelines is redundant in the light of Consumer Protection
(Direct Selling) Rules, 2019.
It is also contended that these guidelines cannot be treated as executive instructions since a
careful perusal, it is evident that Consumer Protect Act (Direct Selling) Rules, 2019 serve the
same objective, have the same clauses as Direct Selling Guidelines and those rules can be
given the flavour of executive instructions which makes the question of enforceability of
Direct Selling Guidelines redundant.17

2.2.3. Direct selling Guidelines do not impinge any rights but are rather regulatory in nature.

13 Amazon Sellers Pvt. Ltd. v Amway India Enterprises Pvt. Ltd and Ors., FAO (OS) 133/2019 and CM APPL. 32954/2019
(India).
14Syndicate Bank vs. Ramachandran Pillai and Ors., (2011) 15 SCC 398 (India).
15 Union Of India vs K. P. Joseph And Ors. 1973 SCR (2) 752 (India)
16Narendra Kumar Maheshwari vs. UOI &Ors. AIR 1989 SC 2138 (India).
17Amazon Sellers Pvt. Ltd. v Amway India Enterprises Pvt. Ltd and Ors., FAO (OS) 133/2019 and CM APPL. 32954/2019
(India).
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eee
Hence, it is humbly submitted before this Honourable Court that the Direct Selling Guidelines
would not impinge BuyNow’s rights to sell Livelong products in any way as long as BuyNow
is making such sale through authorised channels.

Whether BuyNow’s sale of counterfeit products bearing the mark ‘Livelong’

using Fastgram amounts to an act of infringement under the Trade Marks Act, 1999?

The case of the Defendant is that once the goods have been lawfully acquired by a person by
sale of the goods in the market, the further sale of such goods in the market by that person
would not amount to infringement of the proprietor‘s trademark. 18 The contention is that
Section 30 of the TM Act limits the monopoly rights of the trademark owner and confers a
benefit on traders to trade lawfully and acquire goods.19

3.1. Onus is on the Plaintiff to show that the products are indeed counterfeit.

3.1.1. Prima facie evidence must be scrutinized by official authorities before claiming the product
to be counterfeit.
It is humbly contended that the reliefs sought for by the Plaintiff are nothing but an irrational
demand that all the Defendant’s product listings ought to be removed without any official
cross-checking as to whether they are infringing or not. Such relief should not be granted. The
alleged acts of the Defendant in tampering with the safety seals may have given rise to an
apprehension about the genuineness of the products. However, there is no proof that the
product is counterfeit. It is contended that a private investigation conducted by a private party
(Plaintiff) having a vested interest to check the genuineness of the product is not admissible in
the Court of law.20 Prima facie evidence such as lab test reports and other relevant aspects of
the product must be scrutinized by official authorities before claiming the product to be
counterfeit.21

3.1.2. Defendant just resold the goods bought through Livelong seller and the goods being genuine
or not is a matter of evidence.
The Defendant contends that it did nothing more than stock and resell genuine Livelong
products, lawfully acquired on the open market from the registered Direct Sellers of

18Moot Proposition, ¶4.

19Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India).  
20 J. P. Gupta v. National Insurance Co. Ltd.,2006 ACJ 652 (India).
21Lab Recognition Scheme 2018, Bureau of Indian Standards
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Livelong. 22
A heavy onus rests on eee
the Plaintiff to show that the products being sold are not
genuine.23 Concerning the case of Ms. Nina Talwar, it was reported that the safety seal of the
product was broken. The Defendant contends that it did not tamper with the said product. If
the seller who had sold the product to the Defendant had itself broken the seal, clearly then
the Defendant could not be blamed for such tampering. This is a matter of evidence.

3.1.3. Preconceived notion of the products being counterfeit should be rendered inadmissible.
Clearly, there are areas that necessitate evidence to be led by the Plaintiff, which cannot be
affirmed at this interlocutory stage, and the matter should be investigated thoroughly to test
the veracity of the claims of Plaintiff.24 Hence, it is submitted that the preconceived notion of
the products being counterfeit should be rendered inadmissible.

3.2. BuyNow lawfully acquired the goods on sale.

3.2.1. Subsequent sale of the product made by the Defendant neither requires the authorisation of
the Plaintiff, nor does it infringe any of its rights.
The first sale doctrine, also known as the exhaustion rule of Intellectual Property (IP) rights,
limits the power of IP owners to control the downstream distribution and use of their
products that bear their trademark.25 Once a trademark item is subjected to a transaction of
sale, the trademark in the goods sold is specifically exhausted in relation to the trademark
holder’s right to commercialize the specific item. 26 Since the Defendant has bought the
concerned products from the authorised distributor of the Plaintiff itself, the Defendant,
following the doctrine of first sale, contends that the subsequent sale of the product made by
the Defendant neither requires the authorisation of the Plaintiff, nor does it infringe any of its
rights.

3.2.2. The sale of authentic products cannot be barred in view of Section 30 of the Trade Marks
Act, 1999.
Upon a contract for sale of specific goods, the property and the goods are transferred to the
buyer.27 Once a person has lawfully acquired the goods by sale of the goods in the market,
the further sale of such goods in the market by that person would not infringe on the
22 Moot Proposition, ¶5.
23Amazon Sellers Pt. Ltd. v. Amway India Enterprises Pvt. Ltd. and Ors., FAO (OS) 133/2019 & CM Appeal 32954/2019
Del. HC (India)
24 Ratnagiri Nagar Parishad v Gangaram Narayan Ambekar CIVIL APPEAL NO. 2412/2020 SC (India)
25M/s. Tata Engineering and Locomotive Co. Ltd. v. State of Maharashtra, Sales Tax Reference No. 16 Of 2003 With Sales
Tax Reference No. 3 of 2008, Bom. HC (India); Ariel Katz,The First Sale Doctrine and the Economics of Post-Sale
Restraints, Brigham Young University Law Review 2014 BYU L. Rev. (2014).
26Kirtsaeng v. John Wiley & Sons, Inc., 568 US S.C (2013).
27 Sale of Goods Act, 1930, No. 3, Acts of Parliament, 1930 (India) §19.
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eeeauthentic products cannot be barred in view of Section
proprietor‘s trademark. The sale of
28

30 of the Trade Marks Act, 1999. Section 30 of the Trade Marks Act limits the monopoly
rights of the trademark owner and confers a benefit on traders to trade lawfully and acquire
goods.

3.2.3. Principle of International Exhaustion would apply in the present case.

India follows international exhaustion, which itself takes away the Plaintiff's right to control
the further sale and further distribution of the goods. 29 The products being genuine, even if
the unique codes/QR codes are removed, even if the warranties/return and refund policies are
changed, the Plaintiffs would not have any right in law to control advertising, distribution and
sale of the products after the initial first sale.30

Whether Fastgram is within the ambit of "Intermediaries" and is entitled to

protection under the “safe harbor” provisions enumerated under the Information
Technology Act, 2000 and the Intermediary Guidelines of 2011?
Fastgram is a photo & video-sharing social networking platform that commenced its business
profile in May 2020.31 Fastgram possesses a paid-promotion feature for business profiles
wherein businesses can subscribe to the advertisement of their products in the form of photos
or videos appearing in Fastgram users’ stories or feed for a fee. 32 BuyNow has subscribed to
the said paid-promotion feature to advertise its business. 33 Fastgram does not monitor or
control the transactions occurring on its platform vide BuyNow or any other business users. 34
Fastgram’s functions are limited to providing an online marketplace for businesses to
advertise products and act as a platform for photo & video sharing. It is submitted that
Fastgram falls within the ambit of “intermediary” under Section 2 (1) (w) of the Information
Technology Act, 2000 and that subject to Section 79 (2) and (3) thereof, Fastgram under
Section 79 (1) is exempt from any liability arising out of content uploaded by third parties
such as “sellers” on Fastgram platform.

28Phillip Morris Products S.A v. Sameer, CS (OS) No. 1723 of 2010 (India).
29 Samsung Electronics Company Ltd. v. Kapil Wadhwa 2012 SCC OnLine 1004 (India).
30Id.
31 Moot Proposition, ¶2.
32 Moot Proposition, ¶2.
33 Moot Proposition, ¶2.
34 Moot Proposition, ¶2.

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4.1. eee of ‘Intermediary’ under IT Act, 2000 and is
Fastgram falls within the category
exempted from liability.
4.1.1. Fastgram is merely an advertising medium for businesses and it has no direct control over
the sale of goods.
The term “intermediary” as per 2(w) of the IT Act concerning any particular electronic
records means any person who on behalf of another person receives, stores or transmits that
record or provides any service with respect to that record and includes online marketplaces
and [social media applications].35 Further, Section 79 of the IT Act exempts intermediaries
from liabilities where the functions of the intermediaries are limited to providing access to a
communication system and does not modify or select the information contained in the
transmission.36 In this context, the functions envisaged by Fastgram evidences that it is an
online “intermediary” since its functions are limited to be being merely an advertising
medium for businesses and that it has no direct control over the sale of goods as it does not
actively engage in the transactions between buyers and sellers and is also unaware of the
nature of the products traded.

4.1.2. Fastgram has not received ‘actual knowledge’ of any unlawful act.

Section 79 subsection 3 of the IT stipulate that upon receiving actual knowledge, or on being
notified by the appropriate Government or its agency that any information, data or
communication link residing in or connected to a computer resource, controlled by the
intermediary is being used to commit the unlawful act, the intermediary is required to
expeditiously remove or disable access to that material on that resource without vitiating the
evidence in any manner.37 The Hon’ble Supreme court in the case of Shreya Singhal v Union
of India has held that actual notice meant an order from “court” or from “competent
authority.”38 In the present case, the Plaintiff Livelong has failed to provide actual knowledge
of the content of the alleged products.

4.1.3. BuyNow was selling allegedly spurious products in its packaging and under the trademark of
Livelong will not deprive Fastgram from the ambit of intermediary.

It is further submitted that the mere fact that BuyNow was selling allegedly spurious products
in its packaging and under the trademark of Livelong will not deprive Fastgram from the

35Antony Clement Rubin v. Janani Krishnamurthy, W.P No. 20774 of 2018, MAD. H.C (India).
36 The Information Technology Act, No. 21, Acts of Parliament, 2000 (India), §79.
37 The Information Technology Act, No. 21, Acts of Parliament, 2000 (India), §79.
38Shreya Singhal v Union of India, W.P. (Crim) No. 167 of 2012 S.C (India).
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eeeKapil Wadhwa v. Samsung Electronics Co. Ltd., it was
ambit of intermediary. In the case of
held that a change in the condition of the warranty of a certain product would not attract
Section 30 (4) of the TM Act, and equally would not deprive the intermediaries from the
option of invoking Section 79 of the IT Act in their defense. 39 This is applicable similarly in
the present case also where the products are allegedly spurious.

4.2. Fastgram has complied with the due diligence to be undertaken by intermediaries under
the IT (Intermediary Guidelines) Rules, 2011.

4.2.1. Fastgram acceding to the IT (Intermediary Guidelines) Rules, 2011 have confirmed the
guidelines in its services.
Rule 3 of the Information Technology (Intermediaries guidelines) Rules, 2011 lays down the
procedure for observing due diligence for intermediaries. 40 These rules stipulate the need of
intermediaries to lay down definite privacy policies and user agreements for the User’s access
to intermediary’s resources. Fastgram acceding to the above rules have confirmed the
guidelines in its services. On the reception of information from Livelong that the products
might be infringing Livelong’s trademark, the Fastgram has agreed to remove the content
from its platform once an actual notice is send to it in this regard.41

4.2.2. Fastgram’s actions are protected under the ‘Safe Harbour’ Provisions of the IT Act, 2000.

In the case of Christian Louboutin Sas vs Nakul Bajaj &Ors,42 the Delhi High Court has laid
down the tests for determining the liability based on the intermediary’s participation in
hosting of information that is contrary to the said rules. For an intermediary to avail safe
harbour under the IT Act and vide the Information Technology (Intermediary Guidelines)
Rules, 2011, the intermediary must comply with the due diligence under the Rules. Fastgram
in the present case has complied with the said rules and the orders of the Apex court in
Shreya Singhal case. Fastgram has maintained a fair character towards both the alleged
infringer and the claimant during this whole process. It is both unfair and against good
conscience to make Fastgram a party to this infringement suit.

4.2.3. Fastgram should be permitted for non-joinder

In light of the above contentions, it is humbly prayed before the Hon’ble High Court of
Karnataka that the Court may non-joinder Fastgram from the frivolous suit with costs against

39Kapil Wadhwa v. Samsung Electronics Co. Ltd, FAO (OS) 93/2012.

40the Information Technology (Intermediaries guidelines) Rules, 2011, G.S.R. 314(E), Acts of Parliament (India), §3.
41 Moot Proposition, ¶4.
42 Christian Louboutin Sas vs Nakul Bajaj &Ors, C.S (COMM) 344/2018, D.H.C (India)
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the Plaintiff. eee

5. Whether BuyNow is guilty of tortious interference with the contractual relationship

established with Livelong’s direct sellers/distributors?
The restatement of torts defines liability under Tortious Interference of a contract as, "One
who intentionally and improperly interferes with the performance of a contract between
another and a third person by inducing or otherwise causing the third person not to perform
the contract is subject to liability for pecuniary loss". 43 Thus, the intentional and deliberate
act by a third party of interfering in a contract between two parties is the tort of Tortious
Interference. Such an interference must necessarily result in a breach of the contract which
otherwise in the ordinary course of such dealings would not have occurred. It is submitted
that the principles of exhaustion permit BuyNow to sell these products on any platform of
their choice. The conduct of BuyNow in no way constitutes inducement of any breach of
contract between the Plaintiff and the direct sellers.

5.1. BuyNow’s actions are protected under the defence of Justification.

5.1.1. No reasonable grounds made out for the breach of contract between Livelong and its Direct
Sellers.
Any tortious interference requires an unlawful interference by the third party, which results
in damage to the party thereto on account of such interference. 44 Justification is capable of
being a defence to tortious interference.45 It is contended that there are no reasonable
grounds made out for the breach of contract between Livelong and its Direct Sellers. Three
different types of interference that may be actionable under the tortious interference were
enumerated as46:
a. Interference that is not restricted simply to procuring a breach of contract but also
with the performance of the contract, i.e. preventing or hindering one party from
performing his contract even though it may not be a breach of the contract. This may
be in the form of direct intervention by persuasion whether by himself or his agents
or by words or other acts of communication that are intended to influence the breach
of contract thereby constituting a cause of action in favour of the Plaintiff;
b. cases where the intervener does some unlawful acts on a person or property which

43Restatement Of Torts (1939), Introduction, at p.5.

44Inox Leisure Limited v. PVR Limited, Order dated June 24, 2020 in RFA (OS) 26/2020
45Asia Industrial Technologies Ltd. v. Ambience Space Sellers Ltd. 1998 PTC (18) (DB)
46Lindsay International Pvt. Ltd. and Ors. v. Laxmi Niwas Mittal and Ors.
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eee
disables him in performing his contract; and
c. Cases where intervener persuades the third party to do some unlawful acts which
interferes with the due performance of the contract as it was intended.

5.1.2. BuyNow has not induced any person by acts of communication as envisaged under the first
condition.

In the present scenario, BuyNow has not induced any person by any acts of communication
as envisaged under the first condition. BuyNow is a Hyderabad-based company with no
personal connections whatsoever to the Direct Sellers of Livelong apart from what qualifies
as a buyer-seller relationship as BuyNow is buying goods from one of the registered direct
sellers. Hence, the Defendant is not in a position to influence any breach of contract between
Livelong and the direct sellers.

5.1.3. Defendant being a lawful acquirer of goods, has not committed any unlawful act on any
person or property.

It is further contended that the Defendant being a lawful acquirer of goods, has not committed
any unlawful act on any person or property which disables the Plaintiff in performing his
contract. Moreover, the act of sale executed by the Defendant is well protected under the
Doctrine of First Sale/ Doctrine of Exhaustion which gives the legal validity to the actions of
the Defendant to negate the second condition as well.

5.1.4. BuyNow has not persuaded any third party to commit any unlawful act.

It is also submitted that BuyNow has not persuaded any third party, which in the present case
will be Fastgram, to commit any unlawful act which interfered with the due performance of
the existing contract between the Plaintiff and its direct sellers. There is no evidence to
corroborate such an allegation which essentially nullifies all the possible scenarios where the
Defendant could have committed the act of tortious interference.

5.2. Claims against BuyNow do not have corroborating evidence for proof of tortious
interference.

5.2.1. Inducing a breach of contract between the Direct Selling Entities and its sellers/distributors

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eee and cannot be inferred.
has to be proved, a matter of evidence,
It is submitted that whether the Defendant induced a breach of contract between the Direct
Selling Entities and its sellers/distributors has to be proved, a matter of evidence, and cannot
be inferred. If the Court were to permit the Plaintiff to restrict downstream distribution of
goods by enforcing contractual stipulations against third parties, it would be recognition of a
monopoly that can be exercised in perpetuity.47 Regarding any loss and injury, there is no
empirical data offered by the Plaintiff for any possible contention of suffering damage due to
the alleged tortious interference.

5.2.2. The mere fact that the Defendant may have had knowledge of the Code of Ethics of the DSEs
is insufficient to lay a claim of tortious interference.
The mere fact that the Defendant may have had knowledge of the Code of Ethics of the
DSEs, and the contractual stipulation imposed by such DSEs on their distributors, is
insufficient to lay a claim of tortious interference. 48 It is incumbent on the Plaintiff to
demonstrate active efforts on the part of Defendant to make a viable case for tort of
inducement to breach of contract that the Plaintiff has failed to show.

6. Whether ex parte ad interim injunction should be granted?

It is submitted before the Hon’ble court that the present case does not qualify for the grant of
ex parte ad interim injunction.

6.1. Plaintiff has not provided sufficient cause for grant of such injunction.

6.1.1. Extreme care and caution in granting ex parte ad interim injunctions or stay orders is
required.

It is submitted that the plaintiff has not provided sufficient cause for the grant of such
injunction. The Hon'ble Supreme Court in Rameshwari Devi and ors. v. Nirmala Devi and
ors.,49 has held that the Court should be extremely careful and cautious in granting ex parte ad
interim injunctions or stay orders. And it is necessary that an ordinarily short notice should be
issued to the defendants or respondents and only after hearing concern parties should the
order be passed.

47Amazon Seller Services Private Limited and others v Amway India Enterprises Private Limited and others, 2020 Indlaw
DEL 796
48 Ibid
49Ramrameshwari Devi and ors. v. Nirmala Devi and ors., Civil Appeal No.49/2011 SC (India).
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eee for such injunction.
6.1.2. Gravity of the situation does not qualify

In Shiv Kumar Chadha v. Municipal Corporation of Delhi,50 the apex court has held that the
party which invokes the jurisdiction of the court for grant of an order of restrain against a
party, without affording an opportunity to him of being heard, must satisfy the court about the
gravity of the situation and court has to consider briefly these factors in the ex-parte order

6.1.3. It would result in greater mischief if such grant of injunction is admitted by the Court
It is further submitted that in the case, Nawab Mir Barkat Alikhan v. Nawab ZulfiquarJah
Bahadur,51the court held that if the Court were to decide balance of convenience whether lies
in favour of petitioner, it must weigh to balance the mischief by not granting injunction
whether be greater than that arising on the granting of injunction. No illegal damage will be
happening to Livelong’s business on absence of such an order. Instead, if such an order is
allowed it will help Livelong, thwart its fair market competition that BuyNow has now
created.

6.1.4. Plaintiff has not shown utmost good faith to avail the benefit of such injunction

In the case of Bloom Dekor Limited v/s. Subhash Himatlal Desai and ors.,52 the apex court
held that a party applying for ex parte ad interim injunction must show that it is applying for
the same in utmost good faith. The Plaintiff is a company headquartered in Delhi that has
established a business in the field of health and wellness. The plaintiff has created a shallow
market practice of only letting people of its like to sell its product. The plaintiff is controlling
the market by such practice and is actively thwarting the concept of fair market where legal
acquirement of product entitles one to its absolute ownership. The defendant only sells the
product that it has lawfully acquired from the plaintiff’s sellers. The plaintiff is afraid that the
defendant would fracture plaintiff’s monopolistic practice.

It is also submitted that the defendant has had much opportunity to approach any other forum
that was below this court but had sufficient jurisdiction to try this case. Et post haec, plaintiff
has chosen to approach this court to tarnish the reputation of both BuyNow and Fastgram,
and gain popularity for its product. Hence, balance of convenience is not on the side of
plaintiff, and plaintiff will not suffer irreparable loss if the injunction is not granted. In light
of the above, it is humbly prayed that an ex parte ad interim injunction be denied in the
present case.

50Shiv Kumar Chadha Vs. Municipal Corporation of Delhi, (1993) 3 SCC 161 (India).
51 Nawab Mir Barkat Alikhan v. Nawab ZulfiquarJahBahadur,AIR 1975 AP 187 (India).
52 Bloom Dekor Limited v/s. Subhash Himatlal Desai and ors, MANU/SC/0858/1994 (India).
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eee

PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the
applicant most humbly and respectfully in the interest of equity and justice prays and
requests the Honourable Court:

I. To not grant an ex parte ad interim injunction against BuyNow;

II. To not make Fastgram a party to the infringement suit;

III. To allow Buy Now to continue its business with the present Trademark.

IV. To allow Fastgram to continue displaying BuyNow’s goods on its website.

V. To issue any appropriate directions and orders as the Hon’ble Court deems fit in the
interest of justice, equity and good conscience.

AND FOR SUCH ACT OF KINDNESS YOUR RESPONDENT SHALL BE IN DUTY AS

EVER PRAY.

COUNSELS FOR THE RESPONDENT

Place:

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Date: eee

Memorial for the Respondent