The Himalayan Club ..Appellant/Applicant
Versus
Kanwar B. Singh & Ors. ..Respondents
Date of the order:- 24.03.2023
The present appeal was filed in Bombay High Court against the order, dated 3rd August, 2022 passed by City Civil Court, Greater Mumbai, holding that the suit of the appellant/plaintiff is not maintainable. The Trial Court held that since the dispute pertains to ownership of Facebook Group which is trademark defined as referred in Section 2(1)(m) of the Trade Marks Act, the said comes within the ambit of intellectual property and as such in view of Section 2(3A) of the Bombay City Civil Court Act, 1948, the Court has no jurisdiction.
The appellant/The Himalayan Club was founded on 17th February, 1928 is a registered society and enjoys a wide membership with presence in various countries across the globe. The Himalayan Club/appellant also maintains various publications and libraries and organizes several lectures and events etc.
The case of the plaintiff was that the defendant No.1 who was an office bearer of the plaintiff who was assigned a task of helping it with the website, internet based chat groups and the social media outreach.
Defendant no.1 was appointed for the purpose of better handling of the followers/ members which runs in the lakhs, management of the group was divided into Administrator, other Administrator and Members etc.
According to plaintiff, the Facebook Group “The Himalayan Club” having its website as “www.facebook.com/groups/ TheHimalayanClub” was created by the defendant No.1 on instructions and directions of the plaintiff as part of the role assigned to it and accordingly defendant No.1 was “E-Group Moderator” as he was one of the member of the Managing Committee of the plaintiff.
The defendant No.1 who created the facebook group for and on behalf of the plaintiff in the best interest of management. Defendant No.1 became “creator administrator”. Taking undue advantage of the said position, the defendant No.1 started claiming that the plaintiff has no connection with the aforesaid Facebook Group and tried to garner/usurp the control of the said Facebook Group.
Now, Plaintiff sought a mandatory injunction directing the defendants to hand over operation and control of the Facebook Group to the plaintiff and to do such other acts required to effect the handing over of Facebook Group to the plaintiff. A mandatory injunction is also sought against defendant Nos.2 to 4 directing them to remove the defendant No.1 as the creator of the group with other ancillary reliefs.
Court said, the Facebook Group which is claimed to be of the appellant is a website, internet based social media platform which provides for members to exchange views, ideas and to post experiences, messages, photographs etc. As such, it cannot be said that the Facebook platform is a trademark or a copyright. The appellant is seeking recovery and restoration of the same.
If we consider the submissions of counsel for the respondents/original defendants in the backdrop of provisions of clause (m) of Sub-Section (1) of Section 2 of the Trademarks Act, 1999, which defines “mark”, the fact remains that the appellant is claiming to be a registered proprietor of the said mark “The Himalayan Club”. In this background, it cannot be said that the recovery and restoration of Facebook Group can be termed to be a dispute relating to trademark. Once the case of the appellant is based on the creation of Facebook Group under its instructions and authority, it cannot be said that the suit will fall in the category as has been observed.
Hon’ble High Court observed that the conclusion drawn by the Court below that the dispute involved in the suit pertains to the intellectual property and as such, the Court has no jurisdiction to entertain the suit, cannot be accepted. The Court below has misguided itself thereby inferring that the ownership of Facebook Group amounts to trademark and as such, the dispute pertains to the intellectual property. In the background of aforesaid observation, this Court is of the view that the suit is simplicitor as that of declaration of ownership of the Facebook Group and based on the same, consequential relief of injunction is sought.
As such, the impugned order dated 3rd August, 2022 is hereby quashed and set aside. The preliminary issue is answered in the negative and it is held that the City Civil Court has jurisdiction to try and decide the suit.
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