Last month, Mr Justice Manmohan of the Delhi High Court entered summary judgment in favour of the Claimants in Superon Schweisstechnik India v. Geetech India. In a previous story, I had outlined some concerns with his deployment of the summary judgment procedure in the case.
This past Tuesday, the same judge entered another summary judgment for the proprietors of the popular ‘INDIA TODAY’ media brand in Today Merchandise v. www.IndiaTodayers.com. This is the India Today group’s second trademark victory before the Delhi High Court in short order — they also won another summary judgment in the same court against ex parte Defendants in November 2017. Tuesday’s decision, secured against online retailers India Todayers, offers another opportunity to dwell upon what is now a quite remarkable pattern.
The Summary Judgment Passage
The claim in Today Merchandise is for trademark infringement on the strength of the Defendants’ use of the trade name ‘India Todayers’, and a domain name of the same name. Interim orders were issued ex parte against the Defendants in May 2015. Following non-appearance after service, the Defendants were set ex parte at judgment.
Tasked with disposing of the case, Mr Justice Manmohan proceeds to capture facts relevant to the claim. Strangely, the claim asserts that the Defendants’ trade name ‘India Todayers’ is identical to the Claimants’ ‘India Today’ trademark [paragraph 7(iv)]. The Claimants also insist that the Defendants’ business, which is principally of the online retail of home electronics, is “similar” to theirs [paragraph 7(v)]. In truth, the Claimants’ business principally relates to its media group and, while they do operate an online retail platform located at BagItToday.com, it is very much a subsidiary business.
This only serves to confuse the basis of India Today’s claim. Typically, a trademark infringement inquiry of this nature must ask two questions: is the rival trademark similar and, if so, does it serve to confuse? In the India Today situation, the inquiry splits down the middle. ‘India Todayers’ may be similar to ‘India Today’ if it relates to the same field of business but, considering that India Today’s online retail business goes by ‘Bag It Today’, would ‘India Todayers’ confuse consumers relative to ‘Bag It Today’?
India Today’s own claim appears to recognize this. Indeed, its case on infringement goes no further than to say that the Defendants’ trade name “creates confusion amongst the general public who may think that the [Claimants] are expanding their online retail business” [paragraph 7(vi)]. It is, to put it kindly, a tenuous claim at best.
However, without contest from the Defendants, Mr Justice Manmohan finds for the Claimants. He also finds it a fit case to order summary judgment for the Claimants. In doing so, he relies on Mr Justice Endlaw’s February 2013 opinion in Satya Infrastructure v. Satya Infra & Estates. In this ruling, Mr Justice Endlaw had made a case for jumping to judgment in civil actions instead of putting Claimants through the motions of an ex parte trial.
Mr Justice Manmohan says:
“[In] view of the judgment of this Court in Satya Infrastructure, the present suit should be decreed qua the reliefs [claimed in] the plaint. The relevant portion of the judgment in Satya Infrastructure relied upon by [the Claimants] is reproduced hereinbelow:
‘I am of the opinion that no purpose will be served in such cases by directing the [Claimants] to lead ex parte evidence in the form of affidavit by way of examination-in chief, and which invariably is a repetition of the [plaint]. The plaint otherwise…besides being verified, is also supported by affidavits of the [Claimants]. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the [Claimants] and are already on record. I have therefore heard the [Claimants] on merits qua the relief of injunction.’
…Order 13-A of the [CPC, incorporated under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts] Act, 2015 empowers this court to pass a summary judgment, without recording evidence, if it appears that the Defendant has no real prospect of defending the claim.
In the opinion of this Court, the [Defendants] have no real prospect of defending the claim as they have neither entered appearance nor filed their written statement or denied the documents of the [Claimants]. Further, the [Claimants] are the prior registered [users] of the trademark and domain name.
In view of the above, the suit is decreed in favour of the [Claimants] and against [the Defendants] in terms of [the relevant paragraphs] of the plaint along with the actual costs.”
Mr Justice Manmohan’s observations have more than a passing sense of déjà vu to them. In fact, Today Merchandise is his sixth judgment in just the past seven weeks in which this precise passage, with minor variations and with relevant facts fed into the appropriate spaces, supplies the bulk of the judicial discussion. (The others are January 16’s Du Pont and February’s decisions in India Bulls, LG Corp, Du Pont again, and, of course, Superon.)
These apart, references to Satya Infrastructure to justify cutting short the exercise of leading ex parte evidence in similar cases have been prominently made by Mr Justice Manmohan at least twelve times by my count since July 2017. (This includes twice for Monsanto Holdings, twice for Mankind Pharma, as well as in judgments in favour of Claimants in Samsung, Galderma, Tata Sons, Singer, in a patent infringement case in Merck, Gold Peak Industries, Saregama India, and Du Pont.)
Copypasta Has Consequences
What, then, are the consequences of copypasta judgment writing of this nature in summary judgment cases?
I had listed two immediate consequences on the heels of Superon last month.
First, Satya Infrastructure was entered in a case of identical rival trademarks operating in the same field of business. The further away we move from that type of factual, the less convincing becomes the case for bypassing evidence altogether, simply because the Defendant does not enter appearance. Mr Justice Manmohan’s summary judgment passage does not offer a basis to extend the application of Satya Infrastructure to dissimilar facts, such as those in Today Merchandise.
Second, triggering Order 13-A of the CPC, and sub-section (3)(a) specifically, is predicated on the Defendant having no real prospect of defending the claim. However, in cases such as Today Merchandise, the strength of the infringement case has more to do with the manner of presentation of the claim than the Defendant’s defence. This opens up a different question: is “no real prospect of defending the claim” under Order 13-A met simply at the point that the Defendant’s fails to contest, or must the Claimant still meet some non-zero threshold for the tenability of its claim? This is unaddressed in Mr Justice Manmohan’s summary judgment passage.
In addition to these two consequences, the Today Merchandise experience now supplies a third: this approach to summary judgments does not mesh at all with non-linear infringement claims i.e., those where a rival trademark that is not identical operates in a dissimilar field of business. Such cases, by their very construction, are founded on speculative assertions. A good illustration of this is India Today’s claim in this instance that the general public may think that ‘India Todayers’ is an extension of Bag It Today’s business. These assertions, like any other opinion-based claims, are required to be verified by evidence, else they are completely without foundation.
The Ex Parte Evidence Passage
This is a point fairly central to another piece of judicial writing that has become Mr Justice Manmohan’s staple in recent months. In deciding trademark and copyright infringement claims against ex parte Defendants where Claimants have already led evidence, he has often ruled in favour of Claimants in some variation of the following words:
“Having heard learned counsel for [the Claimants] as well as having perused the papers, this court is of the view that, due to extensive use over substantial period of time, the [Claimant’s trademark] has acquired reputation and goodwill in India.
From the evidence on record, it is apparent that, without any explicit permission or authorisation to use the [Claimant’s trademark], the Defendants have malafidely copied the [Claimant’s trademark].
Further, as the [Claimant’s] evidence has gone unrebutted, said evidence is accepted as true and correct. The Supreme Court in [May 2003’s] Ardawatiya v. Panjwani, has held as under:
‘33. …In the absence of denial of plaint averments, the burden of proof on [the Claimant] is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant [the Claimant] such relief as to which [it] may, in law, be found entitled. In a case which has proceeded ex parte, the court is not bound to frame issues under Order 14 [of the CPC] and deliver the judgment on every issue as required by Order 20, Rule 5 [of the CPC]. Yet, the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the ‘points for determination’, and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the Defendant is absent, the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.’
Consequently, the allegation that the [trademark] used by the Defendant amounts to infringement of [the Claimant’s] trademark and copyright, is correct. The use of the impugned mark by the Defendant was bound to cause incalculable losses, harm and injury to [the Claimant] and immense public harm.
Accordingly, [the] present suit is decreed in accordance with the [relevant paragraphs] of the plaint along with the actual costs incurred by [the Claimant]. The cost shall, amongst others, include the lawyers’ fees, local commissioner’s fee, as well as the amounts spent on purchasing the court fees.”
The first portion of this passage first appeared under Mr Justice Manmohan’s authorship in July 2017’s Burberry. His reliance in this type of cases on Ardawatiya in particular was also prominent in EKO India Financial Services, SAP, Puma, and Wockhardt (all in August 2017). The passage took final shape over a series of judgments that now runs to at least nineteen decisions by my estimation since Burberry. (These include September’s Bata India, Shree Sant Kripa, Aakash Educational Services, and SAP, another SAP finding in October, Prudential, RSPL, and Siemens in November, ATS Infrastructure, Antex Pharma, and RSPL in December, another award for RSPL in January 2018, followed by Grasim Industries and Coca Cola in February.)
Summary Judgment and Ex Parte Judgment: Same Difference?
What stands out about the ex parte evidence passage, of course, is its reference to Ardawatiya. Through it, Mr Justice Manmohan has endorsed — over and over again, at least nineteen times — the view that, even in ex parte cases, all available pleadings and documents should be scrutinized. He has also endorsed, in as many words, a justification for this scrutiny that is well worth reiterating — that, merely because the Defendant is absent, a court should not water down evidentiary standards to take on board questionable or irrelevant evidence.
This prompts a simple query: why does a similar standard not hold good for ex parte cases taken to summary judgment? Why, instead, do summary judgment cases reach instead for Satya Infrastructure, which offers imprimatur to accept statements made by Claimants about Defendants offered without any documentary proof since “there is no reason…to disbelieve” them?
On the surface, it appears as though this judge’s preference is for quick disposal. (The timelines of the Order 13-A cases quoted above — from filing to summary judgment — certainly admit of this.) However, Order 13-A operates only in the sweet spot between service of summons and framing issues for trial. This makes it unavailable for those ex parte cases this judge inherited that were already in trial. An eagerness to hasten these cases to their (mostly) inevitable pro-Claimant conclusions could well have provided the spark for the ex parte evidence passage.
Indeed, there is considerable appeal in the idea that this aggressive push for quick disposal in ex parte evidence cases is driven by a desire to treat them as proxies for the Order 13-A cases they never were. If this is plausible, though, surely it would be better to err closer to a more comprehensive appreciation of available evidence than to cut corners in the irascible style authorized by Satya Infrastructure?
The other difficulty with Mr Justice Manmohan’s ex parte evidence passage is its one-size-fits-all approach. There are, after all, limitations to entering findings that may not flow from individual cases. For instance, is it fair to say that all these Claimants who have secured awards on ex parte evidence own trademarks which have “acquired goodwill and reputation” to the same degree? Has each of the Claimants suffered “incalculable losses, harm and injury”? Have the Defendants’ actions in each case caused “immense public harm”? Are the “actual costs” for compensating each Claimant the best outcome in each case? Finally, on similar lines as the summary judgment passage, is it fair to crowbar fairly these specific evaluations into different judgments, whether or not they are suited to the facts?
Caution, Bright Enterprises, and the Hurrier-Behinder Conundrum
These questions must be answered more satisfactorily by the Delhi High Court going forward. However, it is fair to point out that the summary judgment provisions are still quite new in their grounding, and kinks in judges’ approaches are to be expected. Equally, this process will carry with it the fascinating question of how best to blend the summary judgment procedure with a level of caution that has been judicially prescribed.
In January 2017’s Bright Enterprises v. MJ Bizcraft, Mr Justice Ahmed had led a Delhi appeals court in warning courts of first instance of being too trigger-happy with a procedure that is “exceptional”. “It is essential that the stipulations are followed scrupulously,” he said, “otherwise it may result in gross injustice.” He wrote of requiring a bespoke application to trigger the Order 13-A procedure, of offering documentary evidence, of requiring Claimants to explain why their Defendants have no real prospect of defending the claim, and of preserving the adversarial nature of the summary judgment process.
It needs no great intuition to see that Mr Justice Manmohan’s deployment of summary judgment procedure, especially his willingness to reduce Claimant awards to formulaic judgments, pushes back hard against these constraints. It also highlights the crossroads presently occupied by this segment of Indian IP civil procedure.
If summary judgments take hold and become the baseline for a disposal rate-oriented IP litigation environment in India, it is possible that Mr Justice Manmohan’s clutch of template-style judgments could come to be seen as a benevolent starting point. If this does not happen, it nevertheless offers pause to consider how far a single provision has transformed the approach of a judge who, as recently as July 2017’s Exxon Mobil v. Pasha, had offered up a measured discussion of ex parte evidence and infringement that now seems distinctly passé.
To be clear, cases like Today Merchandise tend to go in a predictable, pro-Claimant direction, claim weaknesses notwithstanding. It is also worth pointing out that, on equity at least, India Today’s action does appear to have put a distinctly disreputable entity out of business. Even so, it instantly feels as if Today Merchandise is merely symptomatic of a more deeply significant summary judgment-shaped growing pain.
Mr Justice Manmohan’s embrace of Order 13-A is, therefore, instructive for demonstrating the ups and downs of that growing pain. It has certainly offered up a kind of copypasta justice that feels strangely representative of the times we live in. Most importantly, though, it illustrates a conundrum which is best captured by the very Alice in Wonderland quote that Mr Justice Ahmed opened with in Bright Enterprises — “the hurrier I go, the behinder I get”.