While leaving not even an iota of doubt to linger in the mind of anyone and so also knocking off all lingering questions of probabilities on the capability of the artificial intelligence and whether it could be a good substitute to human intelligence in adjudicatory process, the Single Judge Bench of the Delhi High Court comprising of Hon’ble Ms Justice Pratibha M Singh in a most learned, laudable, landmark and latest judgment titled Christian Louboutin SAS and Anr vs Shoe Boutique – SHUTIQ [Neutral Citation: 2023: DHC: 6090] and also cited as CS(COMM) 583/2023 and I.A. 15884/2023-15889/2023 that was pronounced as recently as on August 22, 2023 has minced just no words to hold in no uncertain terms while noticing that the imitation by the Defendants was nothing more but an attempt to pass off its own goods as the goods of the plaintiffs that:
Accuracy and reliability of AI generated data is still in the grey area.

There is no doubt in the mind of the Court that, at the present stage of technological development, AI cannot substitute either the human intelligence or the humane element in the adjudicatory process. At best the tool could be utilized for a preliminary understanding or for preliminary research and nothing more. It must be also mentioned here that while considering a suit that had been filed by Christian Louboutin SAS (first plaintiff) and Clermon ET Associes, France (second plaintiff) over its distinctive and well-known red sole shoes against the M/s Shoe Boutique (defendant), a partnership firm which is involved in the manufacture and sale of shoes, the Delhi High Court refused to rely on chatGPT responses and held that there has been a clear intention to imitate and gain monetarily on the strength of the reputation and goodwill of the Plaintiffs.

The Delhi High Court also clarified that the products of the Defendant are knock-offs or look-alikes of the Plaintiffs distinctive shoes and footwear, and that they had copied all the essential features of the Plaintiff’s footwear such as ‘RED SOLE’, ‘SPIKED SHOE STYLE’, as also the prints. Hence, we find that the Delhi High Court very rightly decreed the suit and most commendably directed that the Defendant shall abide by the undertaking that it shall not copy or imitate any of the designs of the Plaintiffs’ shoes. It also certainly deserves mentioning that the Court also directed that if any breach of this undertaking is found, the Defendant would be liable to pay a lump sum amount of Rs. 25 lakhs as damages to the Plaintiffs immediately upon such evidence coming to the notice of the Plaintiffs.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Delhi High Court comprising of Hon’ble Ms Justice Pratibha M Singh sets the ball in motion by first and foremost putting forth in para 1 that:
This hearing has been done through hybrid mode.

As we see, the Bench specifies in para 13 that:
The present suit has been filed by Plaintiff No.1- Christian Louboutin SAS and Plaintiff No.2- Clermon ET Associes, France against the Defendant- M/s Shoe Boutique (Shutiq), a partnership firm which is involved in the manufacture and sale of shoes.

To put things in perspective, the Bench envisages in para 14 that:
The case of the Plaintiffs is that they are entities existing in France. The first shop of the Plaintiffs is stated to have opened in 1991 in Paris. The Plaintiffs are known for the well-known ‘RED SOLE’ shoes which are manufactured and sold by them. The manner in which the rights in intellectual property of Christian Louboutin, the founder was transferred to Plaintiff No. 2 - Clermon ET Associes, a trust holding all the IPR, is explained in paras 4 and 5 of the plaint. Plaintiff No.2- Christian Louboutin SAS is the exclusive licensee of all the IP from Plaintiff No.1. The ‘RED SOLE’ on heeled shoes is a signature design of the Plaintiffs which is also registered as a trademark. Some very well-known celebrities have endorsed the Plaintiffs’ products as detailed in the plaint. The shoes of the Plaintiffs have been depicted in well-known TV series and films including ‘Sex and the City Part-I & II’, ‘Devil Wears Prada’ and ‘The Proposal’.

Briefly stated, the Bench states in para 15 that:
The case of the Plaintiffs is that their shoes have acquired enormous reputation and goodwill not only globally but also in India. Various Indian and international magazines have depicted the Plaintiffs’ shoes and advertisements. A perusal of the same would show that the mark has been extensively used across the world.

Further, the Bench discloses in para 16 that:
In India, the Plaintiffs’ products with the unique designs have been sold since February, 2012. The Plaintiffs have in view of the extensive reputation enjoyed by the Plaintiffs’ designs have also started a Stopfake program by which consumers or anyone interested could provide details of either counterfeit or look alike products which would then be looked into by the Plaintiffs.

In addition, the Bench states in para 17 that:
Apart from the ‘RED SOLE’ shoe, the Plaintiffs are stated to have also adopted and created a new unique ‘SPIKED SHOE STYLE’ with spike patterns. The spike patterns are created on both men and women shoes. The Plaintiffs are stated to have adopted the ‘SPIKED SHOE STYLE’ in around 2010. The claim of the Plaintiffs is that the ‘SPIKED SHOE STYLE’ is inherently distinctive and the same can be instantly recognised as emanating from the Plaintiffs alone.

Furthermore, the Bench discloses in para 18 that:
The sales figure of the Plaintiffs for 2022 in India is approximately Rs.22 crores. The Plaintiffs have filed the present suit being aggrieved by the Defendant’s manufacture and sale of identical spike design shoes and footwear. The Defendants operate in various malls including Select Citywalk Mall, Saket from where the spike footwear has been picked up by the Plaintiffs’ investigators.

Shortly put, the Bench then as we see lays bare in para 19 stating that:
The case of the Plaintiffs is that the Defendant firm is a partnership firm of the Makkar family and that the Defendant is manufacturing identically designed shoes with the same get up. Purchases were made by the Plaintiffs both in Delhi, Hyderabad and other cities where the Defendant is located. It is the case of the Plaintiffs a comparison of the shoes shows that the Defendant has identically copied the shoe designs.

Do note, the Bench notes in para 26 that:
Statement of Mr. Kunal Makkar has been recorded to the effect that the shoe designs were used on a ‘made to order’ basis when the customer requested for the same. He further has given an undertaking on behalf of his firm and his family members that the Defendant would not in future imitate or copy, manufacture or sell any shoes which are imitative of the Plaintiffs’ designs which are subject matter of the present suit. The statement having been recorded today, the Defendant has clearly given an undertaking that it does not intend to use the Plaintiffs’ designs.

For sake of clarity and brevity, the Bench clarifies in para 27 that:
This is however not to say that the Court recognises a monopoly in favour of the Plaintiff for all Spiked shoes or coloured soles. The impugned products ought to be a colourable or a slavish imitation of the Plaintiff’s getup and designs for an injunction to be granted.

Most notably and most remarkably, the Bench mandates in para 28 holding that, The above responses from ChatGPT as also the one relied upon by the Plaintiffs shows that the said tool cannot be the basis of adjudication of legal or factual issues in a court of law. The response of a Large Language Model (LLM) based chatbots such as ChatGPT, which is sought to be relied upon by ld. Counsel for the Plaintiff, depends upon a host of factors including the nature and structure of query put by the user, the training data etc. Further, there are possibilities of incorrect responses, fictional case laws, imaginative data etc. generated by AI chatbots. Accuracy and reliability of AI generated data is still in the grey area. There is no doubt in the mind of the Court that, at the present stage of technological development, AI cannot substitute either the human intelligence or the humane element in the adjudicatory process. At best the tool could be utilised for a preliminary understanding or for preliminary research and nothing more.

Most forthrightly, the Bench holds in para 29 that:
Upon perusing the shoes of the parties and the comparative chart of a large variety of product designs which have been imitated by the Defendant that this Court arrives at the conclusion that there has been a clear intention to imitate and gain monetarily on the strength of the reputation and goodwill of the Plaintiffs. This Court has no doubt that the products of the Defendant are knock-offs or look-alikes of the Plaintiffs’ distinctive shoes and footwear. The Defendant has copied all the essential features of the Plaintiff’s footwear such as ‘RED SOLE’, ‘SPIKED SHOE STYLE’, as also the prints. The imitation is not of one or two designs but of a large number of designs as the chart above indicates. The acts of the Defendant are nothing more but an attempt to pass off its own goods as the goods of the Plaintiffs.

As a corollary, the Bench directs in para 30 that:
Under such circumstances, the suit itself deserves to be decreed in terms of paragraph 65 (a) and (b) of the plaint.

It is worth noting that the Bench notes in para 31 that:
Insofar as the prayer for damages is concerned, since the Defendant has agreed to give an undertaking on the very first day when the suit has been listed before this Court, it is directed that the Defendant shall abide by the undertaking that it shall not copy or imitate any of the designs of the Plaintiffs’ shoes. If any breach of this undertaking is found, the Defendant would be liable to pay a lump sum amount of Rs.25 lakhs as damages to the Plaintiffs immediately upon such evidence coming to notice of the Plaintiffs.

What’s more, the Bench directs in para 32 that:
In addition, considering the fact that the Defendant is also using the pictures of well-known Bollywood celebrities on its Instagram account, etc., and also has displayed/ sold the shoes in high end malls, it is directed that the Defendant shall pay a sum of Rs.2 lakhs as costs to the Plaintiffs within four weeks.

For clarity, the Bench clarifies in para 33 that:
The suit is decreed in the above terms. Decree sheet be drawn up after payment of the court fees. No further orders as to costs.

Still more, the Bench directs in para 34 that:
The Plaintiffs are also given a refund of 50% of Court fees.

Finally, the Bench then concludes by holding that:
All pending applications are also disposed of.

In sum, we thus see that the Delhi High Court has very judiciously after considering all the facts before it and perusing them quite in depth has very rightly held that artificial intelligence cannot substitute human intelligence in adjudicatory process. This was held so while granting relief to French entity in TM infringement suit. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh