The Practise of Defendant Masking in IPR suits in India: An Overview

INTRODUCTION 

Unquestionably, India is becoming a centre for innovation, creativity, and technological growth, making intellectual property rights (IPR) increasingly important. Given these circumstances, it is now essential for IP owners to enforce their rights. The practice of "defendant masking," in which defendants in IPR lawsuits intentionally avoid being identified or remain anonymous in court documents in an effort to circumvent the law and stall legal procedures, is becoming an increasingly significant threat to the legal system.

It is thus imperative that India comprehends and curtails this behaviour in order to enhance its intellectual property enforcement systems as it strives to bring its legal systems into compliance with international norms.

An extensive review of defendant masking in Indian IPR lawsuits, the legal snags it takes advantage of, and the judiciary's reaction to this escalating issue are given in this article.

DEFENDANT MASKING

Much like "masks," which are useful for concealing someone's true identity, "defendant masking" operates along similar lines. In India, plaintiffs in IPR lawsuits employ a tactic known as "defendant masking," which involves hiding the "main defendant" among the other defendants in order to prevent the matter from being found in the Cause List. In Indian jurisprudence, the Cause List is a list of cases that the courts will hear the next day or days. It provides information on the Court Number, the bench that hears cases, and the specifics of each case, including the petitioner, respondent, and relevant attorneys. Because the principal defendant's attorney was not present during the early sessions, the plaintiffs were successful in securing ad interim ex parte injunctions.

How can Defendant masking be practised?

An interim ex parte injunction may be granted in accordance with Order 39 Rule 3 of the Civil Procedure Code, 1908; this is merely an exception, not a rule.

When it seems that the delay will negate the purpose of granting an injunction, the court may grant an ex parte injunction, that is, without providing any notice to the other party, and record the reasons for the order. Furthermore, the court must take into account:

·         Whether the plaintiff presented to the court in good faith and with clean hands, and whether or not they have a prima facie case,

·         Whether the plaintiff will sustain irreversible harm or a major injury if the court does not grant the requested injunction right away.

Following the granting of an ex parte injunction, plaintiffs must provide the defendants with a copy of the application for an injunction along with all supporting documentation, and they must also certify to the court that the defendants have received this copy.

In Microlube India Ltd vs. Maggon Auto Centre and Ors, the Delhi High Court first addressed the practice of defendant masking. The court determined that the fundamental goal of this practice is to prevent the main defendants' solicitors from knowing whether a case has been filed against them and thus disallowing them to appear in the court on the first date that the case is scheduled.

the practice of defendant masking was recently seen in the case of Bata India Ltd. vs. Chawla Boot House and Anr. The contested practice was noted by the court, which ordered the Registry to regulate it in all IPR lawsuits. Plaintiffs are therefore required to provide an undertaking stating that the defendant named in the lawsuit is the "primary defendant."

Microlube India Ltd. Vs. Maggon Auto Centre and Ors. – Overview

Since the plaintiff had been using the aforementioned trademark since 1960, the plaintiff filed a lawsuit to prevent the defendants from using it in connection with lubricants. The way the parties were arranged was discouraged by the court. Defendant No. 2, the owner of the registration for the mark MICO in relation to automotive parts, was named as the "main defendant" in this lawsuit. However, Maggon Auto Centre, a dealer of Defendant No. 2's impugned goods, was also named as the "main defendant." The court saw this harmful practice of designating a merchant as the "main defendant" in the lawsuit and arraigning the primary defendant as defendant numbers two or three. he division bench found the underlying objective behind this practice- “When the counsel for the main defendants scan the list of cases, they would not be able to know as to whether any case has been filed against them so as to enable them to appear on the very first date on which the case is listed before court”.

Consequently, the court concluded that since the plaintiff in this instance has omitted and disguised key information, he is not qualified for any kind of equitable redress.

Bata India Ltd Case:

The Delhi High Court severely condemned the practice of "defendant masking" in the recent case of Bata India v. Chawla Boot House, by taking a strong stance, which involved passing off and trademark infringement. Plaintiffs employ this tactic in order to prevent the matter from being found in cause lists and, as a result, secure injunctions during first sessions where the primary defendant's attorney is not present. The Registry was ordered to implement more stringent controls over this tactic in all IPR lawsuits after the court observed it in this particular instance.

BACKGROUND

This specific case concerns a passing off and trademark infringement lawsuit brought by Bata against the "main defendant," Leayan Global Pvt Ltd, for using the marks POWER FLEX and the tagline ‘THE POWER OF REAL LEATHER’ on footwear. The court determined that the mark POWER FLEX was infringed upon in trademark for it being ued for more than 50 years by the plaintiff. More specifically, it determined that their usage infringed against Leayan Global's claim to the uniqueness of the mark POWER in connection with footwear. It did not, however, conclude that any of Bata's trademarks were violated by the tagline, THE POWER OF REAL LEATHER.

Leayan Global's compromise proposal, which called for them to limit the use of the POWER FLEX mark to marketing and sales of leather footwear exclusively—sportswear is the category in which Bata uses the mark POWER—was also taken into consideration by the court. The court, however, dismissed this compromise, arguing that drawing a boundary between these two subcategories would be arbitrary and may unjustly impede Bata's aspirations to expand its brand in the future. Remarkably, in this instance, celebrities like Virat Kohli and M.S. Dhoni were also used as bait, with each player supporting Leayan Global and Bata, respectively. Both parties presented their advertisements as proof of their legitimate usage of the mark POWER. The court was forced to hear arguments implying that Virat Kohli was not a well-known figure in 2014, even though it ultimately determined that Kohli's support had nothing to do with the in question marks and was therefore unimportant!

Arrangement of Defendants

As can be observed, Chawla Boot House, a Delhi-based retail establishment, is the first defendant in this lawsuit, even though Leayan Global is the primary defendant. This is an effort on Bata's part to "mask" the primary defendant in this case. By disguising "Leayan Global" as "Chawla Boot House & another" or "others," this increases the difficulty of being discovered in cause lists and raises the possibility of getting the first hearing, usually on injunctions, ex parte.

In Indian courts, the practice of "Defendant masking" has been deemed inappropriate. The Delhi High Court disapproved of this practice and urged the plaintiffs to present their case honestly and truthfully, without omitting any important details. As a result, the Court instructed the Registry through a circular to make sure that the ruling in the Microlube case is strictly followed and to obtain an agreement from each and every plaintiff in IPR lawsuits involving multiple defendants that the defendant listed as number one is the "primary defendant" in the case.

CONCLUSION

The "primary defendant" in the lawsuit can be hidden behind the name of any other defendant according to the method known as "Defendant Masking." Because of this, the plaintiff has the chance to gain an ex-parte injunction in their favour because the "main defendant" cannot find their name in the cause list. The defendants in this lawsuit do not have a sufficient chance to raise their defence prior to the ad-interim injunction being granted because defendant masking is a common practice these days. The basic tenet of natural justice, Audi Alteram Partem, which states that no one should be condemned without hearing all sides before delivering any judgement, is violated by the plaintiffs' ill conduct. To put it briefly, the judges ought to give each party a fair chance before making any decisions. Natural justice holds that both parties should get justice in a just, equitable, and reasonable way. Therefore, in order to uphold the essential idea of natural justice, defendant masking should be prohibited in all IPR matters.