Courts are silent over online market’s trade marks infringement

The online intermediaries have been laying an active role in the across the globe and it is not new to the international jurisdictions to adjudicate in the cases where there have been infringement by third parties. But the laws in India are still uncertain in the area of infringement by the online intermediaries. In this situation some of the cases from U.S or European jurisdictions act like a respite for the Indian Courts, as they provide helpful guidelines in these cases.

Though it would be wrong to state that Indian Courts are totally oblivious to the issues of infringements as the Delhi High Court in the case of MySpace v. Super Cassettes has propounded a detail guideline with much clarity so as to the copyright infringement . It gave a much needed lucidity to the legal issues concerning the liability of the online intermediaries. It is also a matter of fact that the Courts have not yet dealt with the vexing legal issue related to trade marks infringement which are occurring in vogue at present.

The Indian Courts might not have delved into the legal issues in respect to the trade marks infringement. At the same time the precedents laid down by the Federal Court of U.S and the U.K Court is of much importance as they dealt with the liability of the online intermediaries which facilitated the display of counterfeited goods through their online portals.

The issue which arises in these cases is whether the online portals are directly involved in the acts of infringement by allowing the counterfeited goods for sale through their website to ascertain that if such portal would attract direct liability. It was decided by the Courts that if such portal is not directly using such trade marks in the course of their trade, then the act of merely allowing displaying signs corresponding to a trade mark would not fasten a liability.

Indian Courts have not exactly espoused on the liability of the online marketplaces for sale of counterfeit goods by third parties. Section 29 of the Trade Marks Act, 1999 lays down about the infringement of the registered trade marks, but the Act does not stipulate any act of indirect infringement. Therefore, the view of the Court is similar to that of the Federal Court of U.S and the U.K Court. If the online marketplace does not use the registered trade mark in the course of trade, then mere displaying of corresponding trade marks does not amount to infringement. Displaying amounts to just enabling the customers to display their goods which does not involve any active participation of the online intermediaries.