In the context of e-commerce platforms, the Delhi High Court has held that permitting a third-party seller to ‘latch on’ to a Best-Seller’s name or trademark is nothing but ‘riding piggyback’, which also constitutes passing off.
Passing an interim injunction against Flipkart, the Court restrained the e-commerce platform from allowing any third party sellers from ‘latching on’ to the trademark ‘V Tradition’ or its product listings, so as to ensure that third party unauthorised sellers are unable to misuse the same.
The suit was filed by one Akash Aggarwal, the sole proprietor of an entity operating under the trademark ‘V Tradition’, which was engaged in the business of sale of clothing for women on various retail e-commerce platforms including the defendant Flipkart.
It was the plaintiff’s case that when a third-party seller wishes to place a listing on Flipkart, the platform’s software itself suggests ‘V Tradition’ products as one of the most popular listings and ‘Best-Sellers’ and allows such third party sellers to add various products under Plaintiff’s mark into their own listings, along with Plaintiff’s products, photographs, by way of the ‘Opportunities’ option under the ‘Listings’ tab.
It was claimed that by doing so, various third-party sellers were portraying themselves as ‘V Tradition’ and were riding on the popularity of its products and designs.
The Court thus observed prima facie that Flipkart was permitting third-party sellers to ‘latch on’ to the best sellers in one particular segment of products, resulting in misuse of the Plaintiff’s mark.
Observing that Flipkart allowed third-party sellers to ‘latch on’ to the Plaintiff’s product listings which were featuring as ‘Best Sellers’, by way of the ‘Opportunities’ option, the Court said that any infringing third-party product listings would be liable to be taken down.
Thus, the Court directed Flipkart to ensure that the ‘latching on’ feature is disabled qua the mark ‘V Tradition’ till the next date of hearing. LiveLaw