On the Delhi High Court’s DB judgement setting aside the interim injunction on the online B2B platform IndiaMART, SpicyIP intern Arnav Kaman explains how the decision sets the right tone by allowing IndiaMART to claim safe harbour defence and clarifying that the liabilities of the trademark infringement lie only between the buyer and seller and not such platforms. Arnav is a 3rd Year Law student from Rajiv Gandhi National University of Law, Punjab. He’s interested in Narratives and the Law. His previous posts can be accessed here.
Is it a Marketplace or just a Directory? The DHC Considers the Trademark Infringements from IndiaMART
By Arnav Kaman
Counterfeit goods that infringe registered trademarks do not only flood bazaars but also every corner of the Internet. Along with cases filed against the infringers, trademark proprietors in certain instances feel empowered to hold intermediary platforms, websites or apps that end up hosting these counterfeit goods, accountable for their role in, what they believe is, aiding and abetting such infringement. Such an instance played out in January 2024 in Puma Se vs IndiaMART Intermesh Ltd wherein Puma SE (Puma) was granted an interim injunction against the intermediary IndiaMART Intermesh Ltd. (IndiaMART) from offering sellers the options to categorise their goods with the trademark of ‘PUMA’. Further, IndiaMART was required to take down any listing that contained the keyword PUMA as it was found to be aiding and abetting in trademark infringement.
Yet in an appeal of the same, the Division Bench in June 2025 set aside the single judge order and held that IndiaMART’s usage of the trademark ‘PUMA’ in a drop down menu to describe goods was not infringement nor was it aiding or abetting of infringement. Furthermore, that IndiaMART came under the purview of the Safe Harbour provision under the IT Act.
In the following post, I analyse why exactly there seems to be such a definite reversal of the reliefs granted in January, the modalities of trademark infringement by intermediaries and the liabilities an intermediary possesses.
Dropping Down Straight to Infringements
The plaint arose when Puma was made aware of the many counterfeit goods tagged with their trademarks sold to customers from the website IndiaMART. The January interim injunction puts forth the following findings:
Firstly, that the use of the trademark ‘PUMA’ as an option for sellers to describe their goods is per se infringement. Secondly, IndiaMART actively contributes to infringement by aiding and abetting the sale of counterfeit goods. Thirdly, IndiaMART as an intermediary cannot avail the provision of the safe harbour provision under the IT Act.
Before delving into these issues, one important distinction that the Division bench makes relates to the unique nature of IndiaMART. While the single bench recognises IndiaMART as an e-commerce platform, the DB disagrees. The DB finds that IndiaMART only lists sellers and their contact information, and neither hosts nor profits from the final sale, which happens solely between the buyer and seller. IndiaMART considers themselves to be a conversational commerce hub, akin to a Yellow Pages Directory, listing the available sellers on the market, but not actively participating in the sale itself.
Now, considering the first question: whether or not suggesting the keyword ‘PUMA’ is per se infringement. In the process of registering oneself as a seller on IndiaMART, a drop down menu lists a number of options to describe the product, and the options suggested include the trademarks of Puma, whether in the capacity of PUMA shoes or PUMA socks etc.
Following the January order, IndiaMART was ordered not only to remove infringing listings but also to remove the option suggesting PUMA trademarks in the drop down menu. It must be noted that sellers can still manually type in whatever they wish, including any trademark as keywords. IndiaMART allege they only provided such a suggestion along with other brand names to encourage categorisation of sellers’ goods for consumers’ ease.
The DB observed that, while offering the suggestion of a trademark certainly constituted ‘use’ under the Trademark Act, they did not agree it constituted infringement from the side of IndiaMART. The bench clarified that when a seller uses a registered trademark for a counterfeit good, the seller is liable for infringement, but IndiaMART offering it as a suggestion was not per se infringement as it was only an attempt to categorise the goods.
This leads us to the second question: Is IndiaMART actively facilitating the sale of counterfeit goods by allowing such listings? The Single bench certainly believed so, stating that, not only does IndiaMART encourage the use of the registered trademarks, but it actively supports and contributes to infringement as listings of counterfeit goods are bound to cause confusion and dilution of the PUMA marks. IndiaMART, in the appeal, attempts to find refuge under Section 30 of the Trademark Act, but the same requires two conditions to be fulfilled: Firstly, the act must be in accordance with honest business practices, and secondly, the act must not take unfair advantage or be detrimental to the trademark itself.
The Division bench considers both to be fulfilled. First, they observe that IndiaMART simply offering sellers the option to describe their goods is not per se dishonest and considering the analogy to a Yellow Page Directory, by common standards, these directories are not responsible for authenticating the goods themselves. That responsibility falls with the consumer. Second, they hold that IndiaMART itself has no interest in listing counterfeit goods, it is not the act of IndiaMART that is detrimental, but the act of the seller. The Court makes it clear that to be held liable for even aiding infringement, there must be an active role contributing to it, which in this case, they find is not present. Thus, they find IndiaMART did not facilitate such aiding and abetting of infringement.
While Indian courts have earlier dealt with questions of trademark infringement in relation to intermediaries but largely restricted to advertisements, (Google v DRS Logistics & MakeMyTrip v Google) this judgement is a substantial contribution to trademark jurisprudence for platforms of such a nature. The DB, through rigorous and nuanced analysis, correctly identifies that liabilities of the trademark infringement lie only between the buyer and seller in these cases. This analysis is certainly in line with global jurisprudence in terms of liabilities for e-commerce platforms, but, on the other hand, there is a well-founded concern that such a precedent allows counterfeit goods to be sold unperturbed and the only response is curative, rather than preventative. Yet such concerns reside in a larger purview than the issues of trademark infringement alone, they become part of the third question of the court, related to the intermediary liabilities as well as the exemptions laid under the IT Act.
Harbours and Premiums
The misuse of e-commerce platforms to proliferate counterfeit goods around the world is well known across the world, and equally known is how intermediary platforms find relief from liability through safe harbour provisions. The Safe Harbour provision in India can be found under Section 79 of the IT Act exempting intermediaries from liability in regards to third party information, subject to three conditions: if the intermediary is not involved in 1) the transmission itself, 2) in selecting the receiver, 3) in selecting and modifying the information itself. Further, to avail such a provision intermediaries must follow due diligence obligations and the guidelines prescribed by the Central Government, in this case, specified in The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules)
The Single Bench found that IndiaMART simply did not qualify for the protection under the IT Act as they operated under the framework that the intermediary was an active participant in the transmission, and thus, the three conditions were not fulfilled. Further, they found that IndiaMART had failed to meet the standards of due diligence established under the IT rules. Rule 3(1)(b)(iv) of the IT Rules envisage that the intermediary must make ‘reasonable efforts’ to not display any information that “infringes any patent, trademark, copyright or other proprietary rights”. These ‘reasonable efforts must not be attempted by the intermediary alone but also to cause sellers to not use or publish information that infringes on any intellectual property rights. While IndiaMART did set out an agreement for their sellers to not display any fraudulent information, or make fraudulent offers for sale of counterfeit goods, the Single Bench found merely setting terms and conditions did not reach the threshold of ‘reasonable effort’.
Here, the Division bench diverged and found that IndiaMART did qualify for the protection of Safe Harbour, fulfilling the three conditions, as IndiaMART did not, in fact, involve itself in the transmission or alteration of information. The DB, keeping in mind the directory framework, found that ‘reasonable efforts’ for IndiaMART consisted of: First, informing sellers of their obligations and second, establishing a grievance redressal mechanism. The DB ordered that IndiaMART must ensure that sellers were aware of obligations to not display counterfeit goods and that an express undertaking should be a prominent part of the online registration process. The DB also observed that IndiaMART had sufficiently established a robust complaint redressal mechanism for any counterfeit listings found, including any complaints regarding IPR and the registration of these sellers would be terminated, rendering them unable to re-register. Though the IT Act overrides the Trademark Act (see Christian Louboutin v Nakul Bajaj) safe harbour is only applicable when the Trademark Act is not violated. Where such due diligence is not followed, and IndiaMART actively contributes to infringement, the DB observed that IndiaMART would certainly be held accountable for contributory infringement.
IndiaMART, self-admittedly, does not take responsibility for any fraudulent activities of suppliers. This appears to be the industry standard followed by the likes of Flipkart and Amazon, and they continue to lobby for not being held liable. Regardless, IndiaMART’s arguments hinge on the major difference that separates IndiaMART from traditional e-commerce, the fact that they are not involved in the transaction itself.
Assessing the Findings on the Revenue Model of IndiaMART
One wrench to the above arguments that goes under analysed is the revenue model of IndiaMART. The DB claims that IndiaMART’s revenue system is based on value added services, such as indicating ‘verified’ users. Here, verified simply refers to having a verified phone number. But aside from these value-added services, primarily IndiaMART’s revenue comes from a subscription-based model by premium sellers. Premium sellers pay a monthly fee and get certain benefits such as enhanced visibility or even leads for potential consumers.
It is here that the Yellow Pages Directory analogy seems to fall apart considering those directories do not usually favour one listing over the other. Now, many of these premium sellers are likely to be genuine but a number of them might be selling counterfeit goods while getting the added benefits from IndiaMART. Here, the judgement misses out on an opportunity to extend stricter liability in cases of sellers, that the intermediary actively promotes.
Multiple global reports (OECD & DHS) have identified how e-commerce platforms become hubs of counterfeiting, and more importantly, they acknowledge that the current system of secondary liability may be insufficient to address the cause of the problem, and only acts as a corrective standard.
Courts themselves are not agnostic to the misuse of these e-commerce platforms but to comprehensively address such concerns, policymakers must step in to re-examine our foundational notions of these platforms. The governments need to actively collaborate with such private entities to rip out the roots of the problem at hand. The judgement contributes greatly in analysing trademark infringements in regards to the unique nature of these platforms, but there is still much left to be addressed as to the responsibilities for platforms that appear to be neither marketplace nor directories.
(The Author is grateful to Swaraj and Praharsh for their comments.)