Calcutta High Court
Indiamart Inter Mesh Limited vs Open Ai Inc. And Ors on 20 May, 2026
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Intellectual Property Rights Division)
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
IA NO. GA-COM/1/2025
In IP-COM/57/2025
INDIAMART INTER MESH LIMITED
Vs
OPEN AI INC. AND ORS.
For the petitioner : Mr. S. N. Mookherjee, Senior Advocate
Mr. Ranjan Bachawat, Senior Advocate
Mr. Rudraman Bhattacharyya, Senior Advocate
Mr. S. K. Bajoria, Advocate
Mr. Sourojit Dasgupta, Advocate
Mr. Siddharth Banerjee, Advocate
Mr. Dhruv Chaddha, Advocate
Ms. Gargi Vasistha, Advocate
For the respondents : Mr. Sudipto Sarkar, Senior Advocate
Mr. Ratnanko Banerji, Senior Advocate
Mr. Sanjeev Kapoor, Advocate
Mr. Shounak Mitra, Advocate
Mr. Nirupam Lodha, Advocate
Mr. Madhav Khosla, Advocate
Ms. Vaibhavi Pandey, Advocate
Mr. Aman Khemka, Advocate
Mr. Hardik Malik, Advocate
Mr. Abhi Uday Singh Gautam, Advocate
Heard on : 06.05.2026
Judgment on : 20.05.2026
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Ravi Krishan Kapur, J.:
1. This is an application for interim reliefs. The suit is for protection of the
intellectual property rights of the petitioner.
2. The petitioner is engaged in an integrated electronic Business to Business-(B-
2-B), portal and has been providing an internet-based platform since 1996
with free and paid listings for a wide variety of products. The platform
IndiaMart is being used by millions of consumers to obtain access to
suppliers for diverse products. The petitioner also enjoys registration of
various trade marks in its favour including both word and label marks. In
brief, the entire business of the petitioner primarily depends on the internet.
The results as to the products dealt with by the petitioner are to be found
through the various intermediaries and search engines which provide links to
the IndiaMart website.
3. The respondent no. 1 originally named Open AI INC was established in 2015
for the purposes of building Artificial General Intelligence (AGI) having global
outreach. The objective behind incorporation of the respondent no. 1 was that
powerful Artificial Intelligence (AI) and particularly AGI has a highly
autonomous system which outperforms humans having the potential to bring
larger benefits for society.
4. ChatGPT is an online chat interface which allows users to interact with AI
models in a conversational manner. This technology is revolutionary
inasmuch as it has the ability to increase productivity and is also
economically viable. It is now well accepted that ChatGPT acts as a
mechanism to increase accessibility. The technology underlying ChatGPT,
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allows users to submit inputs including text prompts and receive back
content generated by software and servers which ChatGPT functions by
utilizing an engine known as ‘Large Language Model’ (LLM) which ensures
accuracy, appropriateness, safety and utility to users.
5. In or about October 2024, the respondent no. 2 announced a feature called
ChatGPT search for use on a broad and expansive basis. This feature permits
ChatGPT to provide fast and timely answers with links to relevant web
sources. Thus, a query submitted on ChatGPT allows to supplement its
responses using information from a wide search with attribution and links to
sources or any information style prompts by prospective users based on a
wide variety of factors including locality, financial constraints, preferred
features, physical or online sellers, category wise recommendation of products
alongwith comparisons. In carrying out such functions, the respondent no. 2
has also deployed guard rails which are built in safeguards for blocking
certain outputs, steer users to safe alternate options and add warning or
checks. The implementation of such guard rails is necessary to ensure that
ChatGPT is not called upon to aid unlawful and illegal activity, counterfeiting
and other harmful or biased content.
6. On behalf of the petitioner, it is submitted that the petitioner is not aggrieved
with the manner of data collection by the respondent no.2 in running the
platform ChatGPT but the effect which such responses has on users and the
access to information disseminated through ChatGPT. It is alleged that the
respondent no.1 declares that its mission is to ensure that Artificial General
Intelligence benefits the world at large and this is to be achieved in a manner
where the benefits are as widely distributed as possible. However, the
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responses of ChatGPT demonstrate a deliberate intent to exclude the
petitioner by making listings available on the petitioner’s platform
inaccessible and unavailable though an active/working link is provided for
other third party platforms. For example, on a specific enquiry using results
only on or from IndiaMart, the response of ChatGPT is to bypass sending the
links of the sellers posts through the IndiaMart website and providing the
sellers’ website/link directly. In comparison, when queries are made to other
similar platforms, ChatGPT provides the links of such platforms wherein a
sellers listing is made available on that platform. The intentional and
deliberate omission in response to queries specifically seeking the petitioner’s
platform constitutes a conscious exclusion by ChatGPT and directly interferes
with the petitioner’s prospective business including deprivation of users in
accessing the platform of the petitioner which causes loss to the petitioner.
The petitioner complains of dilution of its mark and also claims
disparagement as well as unfair trade practice by the respondents. It is
submitted that in the nature of functions which the petitioner desires the
respondents are obliged to provide the link with full accessibility to the
petitioner’s link. Thus, the petitioner alleges that there is a positive duty of the
respondents to provide the petitioner’s link.
7. Upon a series of correspondence being exchanged with the respondents, it
transpires that the respondents have refused to display the content of
IndiaMart in view of its name featuring on the United States Trade
Representative Review of Notorious Markets List 2024 (USTR). It is contended
that USTR is not a legal and binding document nor does it have any statutory
force. The USTR List is a foreign document and the same has been unfairly
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used by the respondents to exclude the petitioner with the ulterior intent to
discriminate. Any blind reliance on the USTR List is impermissible. The
petitioner also alleges discrimination inasmuch as other active links DHGate,
Pinduoduo, Shopee, Taobao which are on the USTR List are readily accessible
in the responses generated by ChatGPT.
8. The petitioner complains of infraction of the Information Technology Act, 2000
(IT Act) and the Rules framed thereunder. In terms of sections (2) (1) (w) read
with section 79(2)(c) of the IT Act, ChatGPT is an intermediary and is obliged
to act in terms of the same. The functions which ChatGPT performs as a
search engine do not permit any kind of discrimination under Rule 3(1)(n) of
the IT Rules 2021. The users have a right to know of the existence of
IndiaMart. Such right of knowledge is a fundamental right and cannot be
infringed by the deliberate and intentional omission of ChatGPT. The conduct
of the ChatGPT is also in violation of the fundamental rights afforded to the
petitioner under Articles 14, 19 and 21 of the Constitution of India. In such
circumstances, ChatGPT cannot intentionally choose to exclude the
petitioner. In support of such contentions, the petitioner relies on the
decisions in Neptune Assurance Co. Ltd. vs. Union of India (1973) 1 SCC 310,
Press Trust of India vs. Union of India 1974 AIR 1044 and Neetu Singh & Anr.
v. Telegram FZ LLC & Ors (2022) SCC OnLine Del 2637.
9. On behalf of the respondent no.2, it is submitted that the entire grievance of
the petitioner in based on the premise that it has no ‘right to visibility’ on the
platform of ChatGPT. Significantly, there is no right which the petitioner
claims either based on contract, statute or any constitutional law. In the
absence of any legal injury, the petitioner has no cause of action and the
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petition is liable to be dismissed on that ground alone. In any event, the
reliefs prayed for by the petitioner if granted would open the floodgates to
litigation and would disrupt the functioning of ChatGPT. The fact that the link
of the petitioner does not appear in the results shown by ChatGPT is not per
se actionable. The petitioner cannot also impugn the policy adopted by the
respondents in relying on the USTR.
10. There is also no cause of action which the petitioner has even under the IT
Act. The respondent is not an ‘intermediary’ within the meaning of the Act. As
a consequence, it has no obligation under the Rule (3)(1)(n) of the Rules.
ChatGPT cannot also be described as a search engine. On the contrary, the
response of ChatGPT is that of an ‘originator’ as defined under section 2(1)(za)
of the IT Act. There is no violation under the Trade Marks Act, 1999. The
petitioner has also been unable to demonstrate any cause of action either
insofar as disparagement, trade libel or injurious falsehood is concerned.
There is no infringement under the Copyright Act, 1957. In such
circumstances, the balance of convenience is overwhelmingly against any
order being passed as the same would virtually disrupt the business of the
petitioner. In support of such contentions, the respondent no. 2 relies on the
following decisions: Google LLC v DRS Logistics (P) Ltd (2023) SCC OnLine Del
4809, M/s Getmyuni Education Services Private Limited v Mangalaytan uni
FAO 126/2023 @ paras 6-9, Jasbhai Motibhai Deshai Roshan Kumar (1976) 1
SCC 671 @ Para 47-48, Rohit Pulp and Paper Mills Ltd v CCE (1990) 3 SCC
447, Myspace Inc. v. Super Cassettes, para 51, Sanchit Gupta v Union of India
2024 SCC Online Del 5880, paras 10-14, Tech Plus Media Private limited v
Jyoti Janda, 2014 SCC Online Del 1819 @ Para 20.
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11. The right to carry on trade or business subject to reasonable restrictions is an
inviolable right. The roots of this principle are to be found in the policy of
laissez faire which governs the economic affairs of individuals and
corporations. It is best for industry to be left alone. (subject to reasonable
restrictions) There is no law which can compel a private business to operate
on terms and conditions dictated by a third party. This would lead to collapse
of industry and ultimately be disastrous for entrepreneurship and the free
market system.
12. Traditionally, the common law did not impose liability for what were called
pure omissions. (Lord Diplock in Home Office vs. Dorset Yacht Co Ltd [1970] 2
ALL ER 294 at 326) The Good Samaritan analogy had never found favour with
the common law. In the absence of any contract or statute or constitutional
obligation, there is no affirmative duty which the law imposes to benefit the
economic interests of another. There is no such positive obligation which can
be foisted on a party and hence, there can be no question of assumption of
responsibility.
13. The loss which the petitioner complains of is pure economic loss. The loss of
user traffic is translated as a potential loss of profit. Assuming that the
petitioner is made visible in the manner complained of i.e. by displaying
IndiaMart’s website and seller listing URLs (IndiaMart Links) in the responses
generated by ChatGPT then all the other grievances of the petitioner would be
redressed. The obligation which is sought to be imposed on the respondents is
prima facie neither just nor reasonable and the petitioner simply has to put
up with the same otherwise there would be no end to such claims. There is no
legal right which entitles one party to have its business promoted on another
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private party’s platform. Is IndiaMart reflected and displayed on ChatGPT?
Yes. Is IndiaMart reflected and displayed in a manner in which it would like to
be reflected and displayed on ChatGPT? No. The petitioner cannot determine
how ChatGPT should provide its service to OAI’s users. On the contrary, there
is a simple remedy inasmuch as the petitioner should introduce its own
comparable mechanism as that of ChatGPT or analogous thereto. Of the
petitioner, By the petitioner and For the petitioner.
14. The emergence of generative artificial intelligence now plays a central role in
reshaping how information enters the public sphere. They are software tools
which permit the “synthetic creation” of information. Unlike traditional
intermediaries such as Google which merely hosts speech, Gen AI platforms
produce expression probabilistically by curating a response. (NITI Aayog
National Strategy for Artificial Intelligence Pages 7 to 12) This also raises an
interplay of different legal rights including the right of freedom of speech,
freedom to carry on business and freedom of association, private platforms
governance and intellectual property law. Some of these issues are beyond the
scope of the suit and need not be dilated upon. Nevertheless, the question
which arises for consideration is to what extent should private enterprise be
regulated. This also involves the choice of every private individual or entity to
do or not to do business with another. This is also a kind of freedom. In effect,
any interference of the kind claimed by the petitioner would make serious
inroads in the running and operations of the respondent no. 2.
15. This brings us to the next question: What is the wrong being complained of by
the petitioner? One of the most important distinctions which is to be observed
lies in the different approaches which the law has towards the different kinds
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of damage which a party may have suffered as a consequence of the acts of
omission or commission of another. The loss which the petitioner claims is
ultimately pure economic loss. By the alleged selective discrimination,
inasmuch as the website link of the petitioner is not being reflected in the
responses generated by ChatGPT, the same is causing pecuniary loss and
damage to the petitioner’s business. In attempting to remedy the situation,
the petitioner is seeking to dictate the manner in which the respondents
should be operating ChatGPT. “No third party can compel a service provider
to use its service in a manner to reflect its link or for its benefit”. [Google LLC
vs. DRS Logistic (P) Ltd & Ors. 2023 SCC OnLine Del 4809 @ Para 31]
16. To this extent, the decision of the respondent no. 2 to adhere to the USTR
Report is an internal policy and business decision which is not justiciable.
Moreso, in the absence of the USTR as a party respondent there can be no
determination of the authenticity or veracity of the USTR in this proceeding.
In this context, the Press Release of the Government of India only clarifies
that the same and is not binding. In such circumstances, the grievance of the
respondent no. 2 insofar as the USTR is concerned is without basis and
rejected.
17. This also raises a question of the real purpose behind all intellectual property.
Intellectual Property is meant to promote and not support the less attractive
aspect of human nature. [“IP and other Things”, Robin Jacob, Bloomsbury @
Page 371] There is nothing in the grievance of the petitioner which truly
brings it under the rubric of an intellectual property dispute. There is no
falsity nor deception nor confusion nor association nor publication by the
respondents at all. In such circumstances, silence per se cannot constitute a
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cause of action. Prima facie, the petitioner has failed to disclose any vested
legal right which has been infringed. There is also no case of disparagement
which the petitioner has been able to demonstrate. In order to sustain any
action for disparagement, trade libel or injurious falsehood, there must be
publication and this is conspicuously missing in this case. Nor is there any
case of infringement under the Trade Marks Act, 1999. Any dilution of a mark
under section 29(4) of the Act of 1999 requires use in the course of the trade
and the mere referential use to identify IndiaMart does not satisfy the
ingredient to constitute dilution. (Berger Paints India Ltd. v. JSW Paints (P)
Ltd., 2023 SCC OnLine Cal 4949) Similarly, there is no case of copyright
infringement pleaded either in the plaint or the petition and all arguments
made from the Bar were dehors the pleadings. The petitioner has also failed to
identify any infringement of copyrighted work which makes it actionable.
There are no particulars whatsoever. (Tech Plus Media Private Ltd vs Jyoti
Janda 2014 SCC OnLine Del 1819 @ Para. 20) There may be an element of
unfairness but that is no wrong at all. You cannot cripple the respondents to
doing business in a manner which is most convenient to the petitioner. This
also brings to the forefront the question of the role of Courts and the limits to
be exercised in such matters.
18. For convenience, the relevant provisions of the IT Act are set out below:-
2(1)(w)”intermediary”, with respect to any particular electronic records, means any
person who on behalf of another person receives stores or transmits that record or
provides any service with respect to that record and includes telecom service
providers, network service providers, internet service providers, web-hosting service
providers, search engines, online payment sites, online-auction sites, online-market.
2(1)(t)”electronic record” means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or computer generated
micro fiche;(ta)”electronic signature” means authentication of any electronic record
11by a subscriber by means of the electronic technique specified in the Second
Schedule and includes digital signature;(tb)”Electronic Signature Certificate” means
an Electronic Signature Certificate issued under section 35 and includes Digital
Signature Certificate;(u)”function”, in relation to a computer, includes logic, control,
arithmetical process, deletion, storage and retrieval and communication or
telecommunication from or within a computer;(ua)”Indian Computer Emergency
Response Team” means an agency established under sub-section (1) of section
70B;(v)”information” includes data, message, text, images, sound, voice, codes,
computer programmes, software and data bases or micro film or computer
generated micro fiche places and cyber cafes;
2(1)(za)”originator” means a person who sends, generates, stores or transmits any
electronic message; or causes any electronic message to be sent, generated, stored
or transmitted to any other person but does not include an intermediary;
2(1)(k)”computer resource” means computer, computer system, computer network,
data, computer data base or software;
79. Exemption from liability of intermediary in certain cases.-(1) Notwithstanding
anything contained in any law for the time being in force but subject to the
provisions of sub-sections (2) and (3), an intermediary shall not be liable for any
third party information, data, or communication link made available or hosted by
him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties
is transmitted or temporarily stored or hosted; or
(b) the intermediary does not- (i) initiate the transmission, (ii) select the receiver
of the transmission, and (iii) select or modify the information contained in the
transmission;
(c) the intermediary observes due diligence while discharging his duties under
this Act and also observes such other guidelines as the Central Government
may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by
threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate
Government or its agency that any information, data or communication link
residing in or connected to a computer resource controlled by the intermediary
is being used to commit the unlawful act, the intermediary fails to
expeditiously remove or disable access to that material on that resource
without vitiating the evidence in any manner.
19. The question of whether ChatGPT falls within the definition of an
‘intermediary’ under section 2(1)(w) or an ‘originator’ under section 2(za) of the
IT Act is a complicated and vexed question of both law and fact. There is
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much debate on this aspect and the same can only be adjudicated upon at
the final hearing of the suit after technical, scientific and expert evidence has
been adduced.
20. The IT Act was drafted long before the advent of generative AI and its
definition reflects a world where only humans or legal entities could
“originate” messages. “Originator” as defined above means a person who
sends generates stores or transmits any electronic message or causes any
electronic message to be sent, generated, stored or transmitted to any person
but does not include an intermediary.
21. Search engines typically serve as directories, wherein the user submits a
query for particular information, and the search engine crawls the internet,
ranking the websites that may contain that or similar information and
providing them in a consolidated list. However, there is a fundamental
difference in the manner in which LLM’s operate. They scour through volumes
of data available on the internet, apply their algorithms to the same and then
generate responses to facilitate user queries. These responses are direct and
synthesized. There is a broader application of independent processes
exercised by the LLM. In such circumstances, it cannot be prima facie called a
search engine, since its functioning goes much beyond the same. Moreover, it
cannot be overlooked that functioning even ‘akin to a search engine’ is merely
one of the several roles which ChatGPT performs. For example, ChatGPT if
asked, is capable of generating a poem, preparing a research project or a
drawing. These functions require going beyond the electronic records provided
on the internet and require an application of processes by the LLM. To this
extent, it is the source of new content. It creates and generates or at least in
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part is instrumental for developing content. It provides a functions more
dynamic in nature than static. Prima facie, its generative qualities therefore,
make it fall within the scope of an ‘originator’ under section 2(za) of the Act.
22. The difficult legal issue is that generative AI systems do not fit neatly into the
2000 framework because the IT Act was drafted before modern AI systems
existed and this would ultimately require legislative intervention (not only
through Government Advisories) where distinct liability is created for AI
platforms, which recognizes and distribute liability across developers and
users in proportion to their control and participation over the system. Any
such exercise would also require taking into consideration the different
interpretations adopted internationally and re-examination of a “function
specific” or “entity specific” approach when dealing with the definition of
“intermediary” and “originator”. In some cases, the words are either not
defined. In other cases, they need elaboration. In the dynamic nature of
functions which ChatGPT performs it curates, promotes and generates
content. This makes it an active participant rather than a mere intermediary.
The results generated on ChatGPT are independently generated whereby new
output whether by way of text, code, images writings or pictures are made
available. In many ways, the responses on ChatGPT are uncertain and therein
also lies the originality. It does not simply reproduce materials but acts as a
generator of electronic records. In that sense, it is not a passive conduit. In
such circumstances, ChatGPT has an element of newness, uniqueness and
originality in its results which ought to bring it within the definition of an
“originator” rather than an ‘intermediary’.
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23. On the other hand there is a strong argument for ChatGPT to be treated as
intermediary because any generation of an electronic record, service or
response is always dependent on a “user prompt” while the platform remains
an “intermediary” in providing the computer resource. The user prompt being
the proximate cause, no output exists without the user’s instruction. Then
again the meaning of the word “person” requires reconsideration. The user
supplies the intent and the platform executes it. To this extent, AI cannot suo
moto generate any content. AI is the resource. The intermediary ChatGPT is
the provider of the resource. The human is the originator. Despite the above
issues, prima facie, ChatGPT ought to be treated as an “originator” rather
than an “intermediary”.
24. Even assuming that ChatGPT is an intermediary under the IT Act, the
petitioner has been unable to demonstrate any breach of any positive
obligation which is owed to the petitioner. There is no right which the
petitioner has been able to demonstrate which has been infringed. The only
contention of the petitioner is that non-compliance of the IT Rules, which at
most signifies non-qualification of the safe-harbour exception provided under
section 79 of the Act which grants intermediaries conditional immunity
commonly referred to as “safe harbour” for liability from third party consent.
In order to establish infraction of the IT Act, the petitioner has to
independently establish that the content in question violates a substantive
legal right of the petitioner outside the IT Rules which it has prima facie failed
to do. In this regard, the decisions cited on behalf of the petitioner are
distinguishable and inapposite.
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25. It is true that the fear of opening the floodgates cannot outweigh the
protection of legal or fundamental rights. There is a policy concern about
potential future claims which ought not to be denied in cases where there is a
valid legal right. This requires a balancing exercise. In the classic words of
Cardozo CJ, there cannot be “liability in an indeterminate amount for an
indeterminate time to an indeterminate class”. [Ultramares Corp. vs. Touche
(1931) 255 NY 170 at 179] This is also a factor which has to be taken into
account in weighing the balance of convenience and assessing the
comparative advantages and disadvantages of any order being passed.
ChatGPT was launched in October 2024 and the petitioner has filed this suit
in December 2025. Significantly, at an earlier point of time, the petitioner
itself has blocked ChatGPT from accessing its website. In any event, any relief
if granted in favour of the petitioner would be similar to compelling specific
performance and would require continuous supervision and be impossible to
monitor other than being the final relief in the suit. [State Of U.P. And Ors vs
Ram Sukhi Devi (Supra) at Para41] In view of the above, the petitioner has
been unable to demonstrate any prima facie case in favour of orders being
passed. In addition, the balance of convenience and irreparable injury is also
against any order as prayed for by the petitioner. GA COM 1 of 2025 stands
dismissed. The parties are directed to take necessary steps for expeditious
hearing of the suit.
(Ravi Krishan Kapur, J.)
