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The Delhi High Court has imposed costs of Rs 10 lakh on Policy Bazaar for concealment of material facts in a trademark infringement suit against Acko General Insurance.
As per the order, Rs 5 lakh is required be deposited with the Prime Minister’s Relief Fund, and Rs 5 lakh with Delhi Legal Aid Services Authority.
The order was passed by a Single Judge Bench of Justice Sanjeev Narula in a suit by Policy Bazaar against the defendant Acko General, seeking a permanent injunction restraining infringement of its trademarks, passing off, dilution of goodwill, etc.
While issuing summons in the suit, the Court had granted an ex parte ad-interim injunction, restraining the defendant from adopting and using the “Policybazaar” word mark and trademarks “Policy Bazaar”, “PolicyBazaar”, “PolicyBazar” and “Policy Bazar” in any manner as an ad word through Google.
The defendant thereafter moved an application for vacation of the injunction order on the ground that Policy Bazaar had no cause of action against it and that the case did not merit the grant of any equitable relief in its favour.
It was alleged that Policy Bazaar concealed and distorted material facts, and made misrepresentations and false statements to obtain the order in its favour.
It was argued that Policy Bazaar approached the Court in a clandestine manner, alleging infringement by the defendant for making reference to ‘POLICYBAZAAR’ as a keyword when the company itself was making reference to the defendant and its group company’s registered trademark ‘ACKO’ as a keyword on AdWord programs.
Acko emphasized that Policy Bazaar had been bidding for its registered trademark ‘ACKO’ as a keyword, which was validated by its Google AdWord Program Account Database.
“The auction report therein evidences that Plaintiffs have been bidding for the registered trade/ service mark ‘ACKO’ and hence Plaintiff’s website www.policybazaar.com for Google is listed as a sponsored link for the search engine...”
Policy Bazaar also admitted that it was involved in the bidding for the trademark ‘ACKO’. However, the same was discontinued since April, and on the date of filing of the suit, it was not bidding for the trademark of the defendant.
The company further stated that it was willing to file an affidavit in the Court that it would not bid for the trademark ‘ACKO’ at any time during the pendency of the suit, and would also render an unconditional apology to the Court.
After hearing the parties, the Court recorded that at the time of hearing the ex parte injunction, the facts canvassed by the defendant were not brought to its notice and that the entire pleadings in the suit were silent on this aspect.
It was further recorded that Policy Bazaar “very cleverly made an insignificant mention” in the plaint with respect to the usage of the defendant’s trade name/trademark as a keyword for promoting its business activities through the Google Ads Program.
This insertion was evidently done just to meet the eventuality of the defendant raising an objection of concealment, the Court said.
Stating that Policy Bazaar ought to have made a true, correct and complete disclosure of the material facts, the Court noted that the company was itself indulging in the same activity that it has been complaining of in the suit since July 2018. The order states,
“(The Court) must uphold its majesty and dignity. The stature of a party or enormity of the claim should not be a constraint for the court to advance the cause of justice. Courts should not allow a party to get away with concealment of material facts when it comes to matters relating to grant of reliefs that are founded on principles of equity. I have no hesitation to say that the concealment has been deliberate in this case…
…Plaintiffs owed a duty to the court and concealment of facts amounts to making an attempt to pollute the pure stream of justice. Courts have repeatedly instructed that a party who doesn’t disclose all material facts doesn’t have a right to be heard. The maxim “he who seeks equity must also do equity” would also be applicable.”
The Court thus concluded that the concealment of material facts not only resulted in an unfair advantage over the defendant, but also deprived the Court of valuable and critical information.
The Court, therefore, suspended the ex parte interim order of injunction till the next date of hearing and imposed costs of Rs. 10 lakh on Policy Bazaar.
Policy Bazaar was represented by Senior Advocate Amit Sibal with Advocates Mohit Goel, Abhishek Kotnala, Deepankar Mishra and Ambar Bhushan.
Acko was represented by Senior Advocate Sandeep Sethi with Advocates Brijesh, Peeyoosh Kalra, V Mohini and Udayvir Rana.
The matter will be heard next on July 11.
Read the order: