The intermediary under the IT Act is not required to take action against the IPR infringement

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Case:

Kent RO Systems Ltd & Anr v. Amit Kotak & Ors

Facts:

The Kent RO has obtained design registration of the water purifiers. The defendant no. 1 Amit Kotak sells water purifiers containing the same design through Ebay i.e. defendant no. 2. The plaintiff provided the list of infringing items to the defendant no. 2 and complying that the defendant no. 2 removed the products infringing the intellectual property rights of the plaintiff. The issue arose on the contention of the plaintiff that the defendant no. 2 being the intermediary under the IT Act must remove the list of items infringing the intellectual property rights once it is brought to its notice. The Plaintiff relied on Rule 3 of the IT Rules which imposes an obligation upon the intermediaries to maintain due diligence and contended that the intermediary must refrain to publish contents of infringing character. The defendant no. 2 contended that the intermediary does not interfere with the information and cannot refrain from publishing content of infringing character on its own unless the information is provided.

Issue:

Whether the defendant being an intermediary can be obligated to remove content or refrain from publishing a content of infringing character on its own?

Held:

The court held that the intermediary cannot be obligated to verify the infringing character of the content. The intermediary has the responsibility to remove the content once informed, but that does not cast an obligation upon the intermediary to verify the infringing character of every content before publishing.

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