[Latching On] Does 'More Sellers' Feature On E-commerce Websites Amount To Passing Off? Delhi High Court To Consider

The Delhi High Court is set to consider whether latching on another seller's products - an option provided by e-commerce websites by having 'more sellers' feature under the original seller's product - amounts to passing off and infringes any law.

A division bench comprising of Justice Vibhu Bakhru and Justice Amit Mahajan observed that the assumption about "latching on" feature falling foul of the Trademarks Act, 1999 or amounting to passing off goods, requires examination.

"Prima facie providing a link of another seller on the webpage of a particular seller, absent anything more, neither infringes that seller's trade mark nor amounts to passing off," said the court.

The court also said, "Indisputably, it is permissible for the resellers of genuine products to also sell their products on the e-platform and the same would not infringe the Trademark Act".

Latching on is the feature whereby an e-commerce platform permits third party sellers to place a listing under an already listed product on the website. 'More sellers' option on a product's page allows a user to see other traders of the same product.  

The issue has come up before the division bench in an appeal filed by Flipkart Internet Private Limited against an order passed by a single bench in August 02.

A woman clothing brand, V Tradition, had approached the court to prevent Flipkart from allowing any person or party to conduct its business on the e-commerce platform as 'more sellers' of the goods by the plaintiff, and against unauthorised use of its product images by other sellers.

Justice Prathiba M Singh in August in the interim order had observed that permitting a third-party seller to 'latch on' to the "Plaintiff's name/mark and product listings" is nothing "but 'riding piggy back' as is known in the traditional passing-off sense."

"It is a mode of encashing upon the reputation of the Plaintiff which he has painstakingly built. The affidavits filed by the Plaintiff also need to be further looked into as this seems to be a recurring difficulty that IP owners appear to be facing," the court had said, while taking note of the complaints made by other sellers.

The court had further said such a feature cannot be allowed to be used or offered, to the detriment of the owner of the brand or the person who has created the original product. However, it had also said that consent and authorisation of the brand owner and the listing owner would be required before such conduct by any seller in permitted.

Senior Advocate Rajiv Nayar, appearing for Flipkart, before the division bench argued that the observations effectively have resulted in restraining the platform from using feature of "latching on" on its site. The feature per se did not infringe any law, he contended.

Flipkart's counsel also told the court that 'latching on' feature has already been disabled on the listings of V Tradition

Observing that contentions advanced by Nayar are prima facie substantial, the court said, "The question whether a link provided on a web page, which permits a customer to access the site or a web page of another seller per se amounts to passing off requires examination." 

Listing the matter for gearing on November 21, "Considering the wider ramifications of the observations made regarding the feature of latching on; the observations made in Paragraph 17 to 20 of the impugned order, as quoted above, are stayed till the next date of hearing". 

Title: FLIPKART INTERNET PRIVATE LIMITED v. AKASH AGGARWAL & ANR.

Click Here To Read Order