Delhi High Court has restrained retailers on the eCommerce platform Amazon India from selling Pakistan-made 'Rooh Afza' sherbets owned by India's Hamdard.
The verdict came against the suit filed by Hamdard National Foundation (India) and Hamdard Dawakhana, also trading as Hamdard Laboratories India, against Amazon Seller Services and Defendant Golden Leaf, C/o Amazon Seller Services.
Hamdard National Foundation (India) and Hamdard Dawakhana manufacture and sell various Unani and Ayurvedic medicines, oils, syrups and non-alcoholic beverages. The Hamdard Group's history dates back to over 100 years when well-known Unani practitioner 'Hakeem Hafiz Abdul Majeed' set up a Unani clinic under the name 'Hamdard Dawakhana'. Over the years, the activities of the Hamdard Group have expanded and they have been involved in research and development.
According to the court order, Hamdard National Foundation (India) and Hamdard Dawakhana own rights in the marks ‘HAMDARD’ and ‘ROOH AFZA’. The mark ‘ROOH AFZA’ was adopted by them in 1907 and the said product is a market leader in its segment. The Group has used the mark ‘ROOH AFZA’ for a range of products, including non-alcoholic sharbets and beverages, for which Hamdard Dawakhana obtained the assignment on 11 August 1975 from Hamdard National Foundation (India). The mark ROOH AFZA is registered in India and one of the registrations of the Plaintiffs dates back to 3 August, 1942. The Group has also registered other trademarks for variants of ‘ROOH AFZA’, including the labels and flavor variants etc.
The annual sales of the products under the mark ‘ROOH AFZA’ brand are over Rs.200 crores and a substantial amount has also been incurred by the Hamdard National Foundation (India) and Hamdard Dawakhana in the advertisement and promotion of the brand.
The grievance of the Hamdard National Foundation (India) and Hamdard Dawakhana (Plaintiffs) in the present case wass that Amazon Seller Services (Defendant No.1), runs the eCommerce website www.amazon.in. Golden Leaf, C/o Amazon Seller Services (Defendant No.2), which claims to have the contact details - C/o Amazon Sellers Service Pvt. Ltd., 26/1, 10th Floor, Brigade World Trade Center, Dr. Rajkumar Road, Bengaluru- 560055 (Karnataka), is a seller on the www.amazon.in platform selling and offering for sale the product ‘ROOH AFZA’ (hereinafter, ‘impugned products’). The said sellers were ‘Royal Sales’ and ‘Good Health Enterprises’. Upon these notices being issued on 4 September, 2021 and 9 December, 2021, the said listings were removed from www.amazon.in platform.
However, recently another listing by one ‘Golden Leaf’ was found by the Plaintiffs on the website of Defendant No.1 and upon clicking on ‘Golden Leaf’, the contact details were shown as ‘C/o Amazon Sellers Services Pvt. Ltd’. The Plaintiffs affected purchases of the said product on 6 December 2021 and found to their utter shock and surprise that the said product was not manufactured by the Plaintiffs. Ld. counsel for the Plaintiffs submits that the said product is manufactured in Pakistan and does not comply with the legal requirements of the Legal Metrology Act, 2009 (LMA), the Legal Metrology (Packaged Commodities) Rules, 2011, and the Food Safety and Standards Act, 2006 (‘FSSAI’) which governs such products.
On 5 September, 2022, when the suit was listed before Delhi High Court, Siddharth Chopra, ld. Counsel appearing for Defendant No.1 had submitted that if the URLs of the infringing listings are furnished to him, the same shall be taken down. The Plaintiffs also pointed out that three purchases were affected by them from three sellers through the Amazon platform and on all three occasions, the product was claimed to be manufactured by Hamdard Laboratories (Waqf), Pakistan from Karachi, Pakistan. The original bottle purchased from the Amazon was shown to the Court and accordingly the following directions were issued vide order dated 5 September 2022:
“Ld. Counsel for the Plaintiffs has produced the ‘Hamdard ROOH AFZA’ product bottle which is stated to be purchased by them through www.amazon.in platform.
A perusal of the physical products shows that the same is shown to be manufactured by ‘Hamdard Laboratory (Waqf), Karachi, Pakistan’. There are no other details of the manufacturer mentioned on the product apart from just the name of the manufacturer. No address, email address or telephone number of the manufacturer is available at the label of the product. The label on the bottle produced by the Plaintiffs is as under:
The manufacturing date on the product is shown as March, 2020 and the expiry date is March, 2022. The Plaintiffs’ case is that this product also does not comply with the LMA and FSSAI regulations. It is also not clear as to how these products are being imported from Pakistan when clearly the Plaintiffs have statutory rights in the marks in India.
The Court has, during the course of hearing, also accessed the website www.amazon.in which reveals that there are various ‘ROOH AFZA’ products being offered for sale. However, on a cursory browsing the names of the sellers, their addresses/contact details are not clear.
Clearly, ‘ROOH AFZA’ is a product which has been consumed by the Indian public for over a century now. The same being a drink for human consumption, the quality standards have to comply with the applicable regulations prescribed by the FSSAI and LMA. It is surprising that an imported product is being sold on www.amazon.in platform without the complete details of the manufacturer being disclosed. Moreover, when one clicks on the link ‘Visit the Hamdard Store’, which is provided next to the product listing of Defendant No.2, the consumer is taken to the webpage of ‘Hamdard Laboratories India’ on www.amazon.com, which is of the Plaintiffs. Thus, any consumer or user on the www.amazon.in platform is likely to confuse the ‘ROOH AFZA’ product originating from Hamdard Laboratories (Waqf), Pakistan as being connected or originating from the Plaintiffs. Until and unless the consumer actually receives the product, the consumer has no way of knowing as to whether the product being sold is that of the Plaintiffs or not. This can have an adverse impact on the consumers, inasmuch as the details of the sellers are not known. Since www.amazon.in claims to be an intermediary it has an obligation to disclose names of sellers, their contact details etc., on the product listings.”
The court order reads, “Under these circumstances, the Court is convinced that the Plaintiffs have made out a prima facie case for grant of an ad-interim injunction. The balance of convenience lies in the favor of the Plaintiffs and if an injunction is not granted at this stage, irreparable injury would be caused to the Plaintiffs. However, considering the nature of the dispute, urgent interim injunction orders are required to be passed not only in order to recognize the Plaintiffs’ rights but also to ensure that the products not meant for consumption in India are not sold on the www.amazon.in platform. Accordingly, the following directions are issued:
The listings of infringing ‘ROOH AFZA’ products on the website www.amazon.in not originating from the Plaintiffs shall be removed within 48 hours. If the Plaintiffs have details of the said URLs
The said company shall also check up as to who are the sellers who are selling ‘ROOH AFZA’ products on its platform and if any of the said products are found not to be originating from the Plaintiffs, their listings shall be removed immediately.
If any of the product listings show the products are manufactured or originating from the Plaintiffs, in such a situation, www.amazon.in shall give notice to the said seller to confirm that the same originate from the Plaintiffs and if so, such listings shall be retained.
Since Amazon Sellers claims to be an intermediary under the Information Technology Act, 2000, it shall file an affidavit clarifying as to whether the details of the sellers, including the place of manufacturing of the products, the complete address of the sellers, and the contact details, including the telephone number, email address etc. are mentioned on the ROOH AFZA product listings, invoices, product labels etc. If the same are not available on the product listings, Amazon Sellers shall clarify as to in what manner consumers expected to obtain such details from www.amazon.in platform. The said affidavit shall be filed within four weeks.
The ld. Counsel for Amazon Sellers shall provide the details of the sellers of all the ‘ROOH AFZA’ product listings on its website to the Plaintiffs, within one week, who may then take steps in accordance with law for impleadment etc.,
The Plaintiffs are permitted to inform Amazon Sellers of any listings which they may come across even in the future, in respect of ‘ROOH AFZA’ branded products which are not manufactured and sold by the Plaintiffs so that the same can be immediately removed from the website within 48 hours of the intimation.”
The Hon’ble court granted the following reliefs against Defendants:
“An order for permanent injunction restraining the Defendants, their proprietors or partners or directors as the case may be, their principal officers, servants, agents and all others acting for and on behalf of the Defendants from using, selling and offering for sale the products under the mark ROOH AFZA which is identical to the registered trade mark ROOH AFZA of the Plaintiffs, in any manner and for any goods and services particularly for Syrups/Sherbets products, so as to cause confusion or deception leading to infringement thereof;”
Insofar as Defendant No.1 is concerned, in case any other listings infringing the Plaintiffs’ mark ‘ROOHAFZA’ are found by the Plaintiffs, the same shall be brought to the notice of the Defendant No.1 and the same shall be taken down in accordance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended in 2022. Ld. Counsel for Defendant No.1 shall also be notified of the same in order to ensure compliance.
Source - This story has been reproduced from the Delhi High Court judgetment; Date of decision – 11 November 2022