EIGHTY, MEITY and DoT: Dotting the I’s; Crossing the T’s — Section 80(2) of CPC and Effective Interim Relief

In the present times, where owners of trademark take to the Internet for branding, marketing and promotional activities and where a large chunk of copyrightable content is created, circulated and consumed in the cyberspace, inevitably, a soaring number of infringing activities can also be found online. Given the efficiency of the Internet as a medium to increase outreach quickly, in such instances, it becomes incumbent upon the aggrieved party to enforce rights and get the alleged infringer injuncted from continuing the infringement as fast as possible. In the tryst of preventing the proprietor of intellectual property (“IP”) from suffering irreparable injury, time is of the essence. In light of this, obtaining ad interim injunctions becomes a crucial aspect in the modern IP litigation circuit.

However, practically, in a case where the infringement is taking place online, even an ad interim injunction against the party who is responsible for uploading/posting the infringing content online may not suffice. This is because, in many cases, such parties may be unidentified (John Doe) or difficult to reach out to because of a degree of anonymity offered by the Internet. In order to take care of this practical difficulty, in such cases, the plaintiffs in suits for infringement of trademark, copyright and/or passing off resort to impleading the Department of Telecommunications (“DOT”) and the Ministry of Electronics and Information Technology (“MEITY”).[1] This is done to ensure that URLs or web pages containing the impugned content are blocked or suspended and the reliefs granted by the courts are not rendered ineffective.

Here, it is pertinent that both DoT and MEITY are Government bodies. As per Section 80 of the Code of Civil Procedure (“CPC”), for a suit to be instituted against the Government, it is mandatory to serve an advance notice in writing at least two (2) months prior to instituting such suit. Section 80(2) prescribes that where an urgent or immediate relief is sought against the Government, with the leave of the court, the above requirement of serving advance notice can be done away with and a suit may be instituted. However, the said sub-section also lays down that in such a case, the court shall not grant relief in the suit, whether interim or otherwise, except after giving the Government a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.

Upon a bare reading of this sub-section of the CPC, with the above context of online infringements of IP in mind, one may ponder, does this completely rule out the possibility of ex parte ad interim injunctions when DoT and MEITY are impleaded as defendants? How would a plaintiff ensure expeditious enforcement of IP rights in the cyberspace without the involvement of DoT and MEITY in taking down URLs or web pages containing infringing content?

However, a perusal of recent cases involving, inter alia, trademark and copyright infringement on the Internet, does reveal that not only ad interim injunctions, but also ex parte ad interim inunctions, are being granted in such cases without DoT or MEITY being heard or served with such notice. See for instance GS1 India v. Barcodes SL & Ors., SAP SE v. ERP Training India & Ors.. Notably, in both these cases, applications for leave to institute the suits without serving notice to DoT and MEITY, have been filed under section 80(2) read with Section 151 of the CPC, and the Delhi High Court has granted the said leaves to the respective plaintiffs exempting them from issuing notice to DoT and MEITY. Moreover, in these cases, the Court has also granted interim injunctions without notice being served to DoT and MEITY, let alone the bar on granting interim injunction without giving a reasonable opportunity of showing cause to the above-noted government bodies.

This begs the question whether section 80 of the CPC is being circumvented in the above cases and many other similar cases in which interim reliefs are being granted?

The answer to the question lies in another Delhi High Court ruling in a case which, albeit not related to IP, involved impleading of DoT and MEITY as defendants. In this case, namely Nirmal Jeet Singh Narula v. Indijobs at Hubpages.com,[2] the plaintiff was praying for reliefs regarding removal of web pages featuring defamatory content about the plaintiff. DoT and MEITY were impleaded as defendants. As regards requirement of serving notice under section 80 of the CPC, the plaintiff argued that Section 80 did not apply in the given facts and circumstances because the above-noted government bodies were impleaded only to aid in protecting the plaintiff’s interests by blocking access to the impugned web pages containing illegal content. It was also emphasized that the suit was not filed in respect of an act done by the above-noted bodies. In other words, Section 80 of CPC would not be attracted to the said case because no act of the said government bodies were being challenged or sought to be set aside. This argument was accepted, and an ex parte ad interim injunction was granted in favor of the plaintiff, ruling, inter alia, that DoT and MEITY were directed to block the impugned websites from public access within India.

Similarly, in trademark and copyright infringement cases, this requirement prescribed under Section 80 of CPC, can be done away with, in the event that no acts of the said government bodies are challenged in the above suit being filed. Clearly, MEITY and DoT are impleaded as defendants only to aid in protecting the plaintiff’s rights. This ousts the application of Section 80 in such cases. Therefore, ex parte ad interim injunctions being the most crucial and effective tool of enforcing rights in IP, can be granted without serving the said notice in cases where immediate or urgent relief is sought.

[1] A couple of recent Delhi High Court cases in which this practice can be observed — GS1 India v. Barcodes SL & Ors. CS (COMM) 147/2020; SAP SE v. ERP Training India & Ors. CS (COMM) 156/2020

[2] CS (COMM) 147/2020