AUTHOR :- BABLI, a student at LLOYD SCHOOL OF LAW
ABSTRACT
Type a brand name into an online marketplace, hit search, and a question quietly follows that click: is this product real, and if it turns out to be fake, who’s actually on the hook? E-commerce in India has grown so fast that counterfeiting has grown right along with it – cheaper to pull off, harder to trace back to anyone. Meanwhile, the Trade Marks Act, 1999 was written for a world of physical shops and shelves, not for algorithm- driven listings and sellers who never touch the product they’re shipping. This article looks at how Indian courts have worked with the legal tools already on hand – particularly the safe harbour protection under Section 79 of the Information Technology Act, 2000 – to figure out when a marketplace is genuinely just hosting a listing, and when it’s crossed line into actively enabling infringement. Along the way, it walks through some of the biggest cases to shape this area: Christian Louboutin v. Nakul Bajaj, the Amway v. 1MG Technologies fight, the eye-watering damages handed down in Lifestyle Equities v. Amazon Technologies, and the more recent reversal in Puma v. IndiaMART. It then places India’s somewhat piecemeal approach side by side with tighter, more codified systems like the EU’s Digital Service Act and the American Lanhan Act tradition that grew out of Tiffany v. eBay. It ends with some practical and legislative fixes worth considering.
TO THE POINT
Fake goods did not start with the internet, but online marketplaces gave counterfeiters a much faster lane. A seller can list a knockoff from one city, ship it out of a warehouse in another, and disappear from the platform entirely- all within a matter of hours, often before the brand even realizes something is wrong. And that is the real problem: Indian law was built around a simple picture, a manufacturer or trader directly putting a mark on a product. It never quite anticipated a marketplace sitting in the middle, neither making nor selling the fake outright, but making the whole transaction possible.
Doctrine of exhaustion (first sale doctrine) – think of it this way: once a trademarked product is sold legitimately, the brand owner can’t control what happens to it next. Someone can resell it, and that’s generally fine – unless the product has been altered or damaged along the way, in which case the exceptions kick in.
Transborder reputation – a brand’s reputation doesn’t need a passport. If a mark has built up goodwill internationally, courts can protect it in a country even if the brand has never actually done business there.
The Proof
Statutory Framework
The Trade Marks Act, 1999 gives registered trademark owners exclusive rights under Section 28, with civil remedies available through Section 134 and 135. On the criminal side, Section 101 to 103 punish anyone who falsifies or falsely applies a trademark – and courts have started using these provisions codes or slap on new packaging. The catch is that none of this was written with online marketplaces in mind, so courts have had to reach into cyber law to fill in the blanks.
That’s where Section 79 of the Information Technology Act, 2000 comes in. It protects intermediaries from liability for what third parties post, as long as they follow the due- diligence rules laid out in the 2021 IT Rules – which replaced the older 2021 Guidelines that first introduced the 36-hour takedown window. On top of that, the Consumer Protection (E-Commerce) Rules, 2020 require platforms to disclose who their sellers actually are and set up a proper grievance system. It’s not aimed directly at trademark law, but it helps – because a traceable seller is a lot easier to hold accountable.
The International Comparison
The US worked through this almost two decades ago in Tiffany v. eBay. The Second Circuit’s answer was clear: just knowing counterfeiting happens somewhere on your platform isn’t enough to make you liable. You need specific knowledge of specific listings. The EU has pushed things further, scrapping its older e-Commerce Directive immunity in favour of the Digital Services Act, which spells out concrete due-diligence and fast-notice rules alongside the EU Trade Mark Regulation. India, meanwhile, sits somewhere in the middle of these two approaches- Reliant on judicial interpretation rather than a dedicated marketplace statute – there’s no single law that governs this space directly, so it’s the courts, case by case, who are shaping what the rules actually look like.
Case Laws
Christian Louboutin SAS v. Nakul Bajaj & Ors. (Delhi High Court, 2018)
This one’s often treated as the starting point. Christian Louboutin sued the operator of darveys.com for selling shoes with its signature red sole without any authorisation – and here’s the twist, the seller claimed the shoes were genuine anyway. The Court wasn’t convinced that this made the platform a neutral bystander. It looked at what darveys.com was actually doing: using Louboutin’s mark in its meta-tags, actively promoting the listings, personally vouching that the products were authentic, and controlling how the sale unfolded. That’s a lot more that just hosting a webpage. The Court’s takeaway was simple – once a platform starts behaving like that, it’s not sitting on the sidelines anymore. It’s player in the infringement itself, and it loses the safe harbour that comes with being a neutral intermediary.
Amway India Enterprises Pvt. Ltd.v.1MG Technologies Pvt. Ltd. & Anr. (Delhi High Court, 2019-2020)
Here, a group of direct – selling companies went after several marketplace for listing their products without any consent, arguing this broke the Direct Selling Guidelines, 2016. They also pointed to tampered seals and altered product codes as proof the goods had been compromised. At first, a single judge agreed and blocked the platforms, ruling that damaged packaging alone could count as infringement, even if the product inside was completely real. But a division bench later stepped in and undid that decision. Their reasoning? Whether a platform genuinely qualifies as an “intermediary” isn’t something you can decide on a summary basis – it needs a full trial with proper evidence. So for now, this question remains open.
Lifestyle Equities CV & Anr. v. Amazon Technologies, Inc. & Ors. (Delhi High Court, 2025)
This case hit hard. The owner of the “Beverly Hills Polo Club” brand accused Amazon of letting its own private-label products carry a logo that looked suspiciously close to theirs. The Court didn’t buy Amazon’s neutral-platform defence – it found Amazon was directly involved in branding, pricing, and how the products were sold, which was more than enough to knock out safe harbour protection. The damages awarded? Over USD 38 million – one of the biggest trademark verdicts India has ever seen. The message was hard to miss: if a platform is shaping the product itself, it can’t hide behind the “we’re just a marketplace” defence.
Puma SE v. IndiaMART InterMESH Ltd. (Delhi High Court, Division Bench,2025)
Puma’s argument here was that IndiaMART was letting sellers tag their listings with the Puma name specifically to push counterfeit products. At first, a single judge agreed, finding IndiaMART complicit and refusing to extend safe harbour protection. But the division bench saw it differently. They treated IndiaMART less like a typical marketplace and more like a B2B directory – essentially a listings service connecting businesses – and decided that whatever happens in the actual sale is a matter between the buyer and seller, not IndiaMART’s problem to answer for. This reopened a debate that hasn’t really gone away: how closely should courts actually be examining these platforms?
Conclusion
India courts have worked hard to stretch a 1999 trademark law and a 2000 cyber law to fit a marketplace economy neither one saw coming. Cases like Nakul Bajaj and Lifestyle Equities show judges willing to look past the “just an intermediary” defence when a platform acts like an active seller – while Amway and Puma show how quickly that line blurs once the facts get messy. This isn’t really the courts’ fault; it’s a legislative gap. India still lacks a proper framework, something like the EU’s Digital Services Act, spelling out exactly what due diligence a marketplace owes before claiming safe harbour.
In this author’s view, three things would help: a tiered liability standard separating passive listers from platforms that control pricing or fulfilment; a unified seller- verification and complaint portal to speed up takedowns; and courts sticking to real, listing-specific proof of knowledge rather than swinging to either extreme. Until Parliament acts, brand owners will keep fighting this one injunction at a time.
FAQs
1.Can an e-commerce platform actually get sued for a seller’s fake listing?
Yes, it can. If the platform is doing more than just hosting the listing – say, vouching for the product’s authenticity, controlling how it’s packaged, or actively pushing the listing through promotions – courts can treat it as an active participant in the infringement, not just a neutral intermediary.
2.What is safe harbour, exactly, and does it cover everything?
Safe harbour, under Section 79 of the IT Act, protects intermediaries from being held liable for what third parties post. But it’s not a blank check – it only holds up if the platforms starts neutral and does its due diligence. The moment a platform starts picking, editing, or promoting infringing content, that protection disappears.
3.If I resell a genuine branded product without the brand’s permission, is that infringement?
Usually not. Once genuine product has been sold lawfully, the doctrine of exhaustion generally lets it be resold freely. But if someone messes with the packaging, breaks the seals, or changes the product codes along the way, courts have said that crosses the line into infringement.
4.How fast does a platform have to take down a fake listing after being notified?
Under the 2021 IT Rules, platforms are expected to act on valid takedown requests quickly – within the timeframes the rules lay out. If they drag their feet, they risk losing safe harbour protection altogether.
