John Doe Orders
28 August 2012
Recently, there has been an upsurge in the grant of John Doe orders in India by various High Courts. The name ‘John Doe’ – often pronounced as John Doo – is used to name a defendant whose identity is not known. John Doe orders are granted where there is an apprehension that the defendant will be committing a wrongful act and whose identity is not known and cannot be determined by the Plaintiff at the time of filing the suit. In such a situation to avoid any delay in the grant of relief to the Plaintiff, Court names the defendant as ‘John Doe’ until such time the Defendant is identified. It is then replaced with the name of the Defendant. If such a Defendant is a female, the name ‘Jane Doe’ is used.
Different names are used to identify such Defendants in various jurisdictions. In the United Kingdom, United States and Canada, apart from John Doe, use of other alternatives like Richard Miles, Richard Roe, Marry Major, etc are also common. In India such order are also known as ‘Ashok Kumar orders’ where the name Ashok Kumar is used to name unidentified Defendant(s). The origin of such type of orders can be traced back at the times of England’s King Edward III where orders were passed against unnamed Defendants.
John Doe orders are similar to obtaining a temporary injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure (CPC), 1908 of India, which should be read along with Section 151 of the CPC invoking the inherent power of High Court. For grant of such type of order it must be proven that the:
1. Plaintiff has a prima facie case;
2. Balance of convenience is in favour of Plaintiff;
3. Irreparable loss and injury will be caused if a relief is denied to the Plaintiff; and
4. Monetary compensation would not afford adequate relief.
The burden is on the Plaintiff to prove that he has the right and that he anticipates a large scale infringement and is unable to ascertain the full particulars of the Defendants at the time of seeking relief.
When a ‘John Doe’ order is passed, the Plaintiff can serve a copy of the order on the party which is found to be infringing the Plaintiff’s right and make a search and seizure on the spot. This avoids delay in the granting of relief and is useful in preserving evidence in the matter. Failure to comply with the order may initiate contempt proceedings. The Defendant can, however, argue their case and prove their innocence in a court of law, like in any other IP infringement matter.
The media industry has been enforcing such ‘John Doe’ orders to curb rampant piracy prevalent in the industry. Production houses of various Bollywood films like “Singham,” “Bodyguard,” “Don 2” and “Speedy Singhs” have been successful in obtaining ex-parte injunctions for their copyright against unidentified Defendants, which has cut piracy levels by up to 40%. One of the most recent John Doe orders, in which the decision is still pending, is Idream Production v. Hathway Cable & Data & Another, contested before the Bombay High Court, wherein the Plaintiff filed a suit against Hathway Cable & Data and other unknown Defendant to restrain them from broadcasting the movie “Fire,” which has been banned in India.
Apart from the media industry, such orders are also passed against unidentified persons indulging in the manufacture and sale of counterfeit goods. One such case in which the John Doe order was granted is Luxottixa Group v. Ashok Kumar, where unidentified Defendants were restrained from the sale and manufacture of counterfeit optical eyewear and their carry cases bearing the famous trademark RAY BAN.
So far, John Doe orders are proving to be an effective and efficacious remedy and have been successful so far against counterfeiting and piracy prevailing in India.
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