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Court Case Bulletin (CCB): Internet Extracts Are Admissible As Primary Evidence In Trade Mark Proceedings
Author: Anurathna Mathivanan
In the matter of Excitel Private Limited v. The Registrar of Trade Marks [C.A. (COMM. IPD-TM) 5/2021], Single Judge [Pratibha M. Singh, J.] of the High Court of Delhi, by decision dated July 18, 2022 allowed the appeal against an order passed by the Senior Examiner of Trade Marks on October 28, 2020, refusing the application for the mark ‘REELTIME’ in Class 42 on the ground that the evidence was insufficient to render acquired distinctiveness to the mark. The High Court held that internet website extracts submitted by way of an Affidavit accompanied with a Certificate as prescribed under Section 65B (1) of the Indian Evidence Act, 1872 would suffice as primary evidence in trademark proceedings.
Section 62 of the Indian Evidence Act, 1872 provides that – “Primary evidence means the document itself produced for the inspection of the Court”. The question would be whether printouts of internet websites would qualify as documents produced for inspection in trademark proceedings and if the same would be admissible as primary evidence.
The Appellant submitted proof of continuous and extensive usage of the mark “REELTIME” by way of an Affidavit arguing that the use of “REELTIME” on the Internet has been sufficiently placed on record along with printed extracts from the website. The Respondent in the impugned order dismissed the evidentiary value of the evidence submitted and stated that internet website extracts would not be primary evidence and would have merely secondary evidentiary value. Thus, having no primary evidence of acquired secondary meaning or concurrent use, internet extracts would not sufficiently prove long and continuous commercial use of the mark. The Respondent also submitted that the product under REELTIME is no longer being offered and hence, the rights in the said mark cannot be claimed by the Appellant despite having internet presence.
The Court held that, “rejecting the evidence extracted hereinabove, on the ground that it does not constitute primary evidence would be an incorrect approach…if there is any doubt…the examiner can call for an affidavit under Section 65B of the Information Technology Act, 2000. Simply rejecting the website printouts would be contrary to law as the law permits reliance on website printouts, so long as they can be they can be accompanied with a certificate under Section 65B of the IT Act.”
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