Counterfeit Fashion Sales on E-Commerce Platforms: Reexamining Marketplace Liability under Indian Law

The growth of online fashion retail in India has been accompanied by a parallel and largely unregulated growth in the sale of counterfeit goods through the very same platforms that host genuine brands. Amazon, Myntra and Flipkart, among others, have built business models that depend on third-party sellers, yet these platforms routinely disclaim responsibility for what those sellers list by invoking the safe harbour available to intermediaries under Section 79 of the Information Technology Act, 2000. This paper argues that the safe harbour defence, as currently interpreted, sits uneasily with the degree of control that marketplaces actually exercise over listings, logistics and consumer trust. Drawing on the Delhi High Court’s reasoning in Christian Louboutin v Nakul Bajaj and comparing it with the more permissive standard adopted by American and European courts, the paper contends that Indian law has quietly moved towards an active role test without ever codifying one. It concludes that the absence of a statutory definition distinguishing a passive host from an active commercial participant leaves brand owners, sellers and consumers to litigate the same question afresh in every dispute, and proposes a tiered liability framework as a way out of that cycle.