India: Interactive Website - Platform For Territorial Jurisdiction For IP Enforcement In India

Last Updated: 4 July 2011

By Vijay Pal Dalmia, Advocate, Delhi High Court & Supreme Court of India, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, New Delhi, India


Vikas Mishra, Advocate, Delhi High Court & Supreme Court of India, Associate Intellectual Property Laws Division, Vaish Associates Advocates, New Delhi, India

Jurisdiction is an aspect of state sovereignty and refers to judicial, administrative and legislative competence. The term Jurisdiction in common legal parlance would mean the right to administer justice. It may be defined as the power or authority to hear and determine a cause to adjudicate and exercise any judicial power in relation to it.

The scope of this article is to expound the jurisdictional powers of the courts in matters where the cause of action lies in the "World Wide Web".

In order to invoke jurisdiction of a court to institute a suit for trade mark infringement and/or passing off, the Indian law recognizes three settled criterion i.e.,

  • Territorial jurisdiction,
  • Pecuniary jurisdiction and
  • Subject-matter jurisdiction.

In determining all the above, it is the cause of action which plays a pivotal-role. It is the subject of the cause of action which determines whether a court has jurisdiction over such subject matter and it is the pecuniary value of the suit which establishes the presence or absence of competence in a court. Every suit presupposes the existence of a cause of action and in majority of cases, it is the place where the cause of action arises and which determines the jurisdiction of the Court.

The statutory provisions for institution of suits for infringement of Trade Mark and/ or passing off are provided under Code of Civil Procedure, 1908 and the Trade Marks Act, 1999. However, Section 20 of Code of Civil Procedure, 1908 is the fundamental law which governs the procedure and law to institute any suit in a competent court of law.

It shall be not out of place to mention here that the Trade Marks Act, 1999 provides for a special provision for proprietor of a registered trade mark to institute a suit for infringement of a trade mark. Section 134(2) of the Trade Marks Act, 1999 provides for additional forum to the proprietor of a registered trade mark to institute a suit for infringement of trade mark in whose jurisdiction, the said proprietor actually and voluntarily resides or carries on business or works for gain, at the time of institution of suit.

The internet is a paradox. It is a worldwide entity whose nature cannot be easily or simply defined. In this era of e-commerce, the Indian courts addressing the importance of World Wide Web in commercial transaction has broadened the ambit of the principle 'cause of action' by including the use of an active website for commercial transaction as the situs of jurisdiction.

The Indian judiciary has through a thorough understanding of the evolving law, demonstrated what is required of Indian legislation- dynamism and an open mind to incorporate certain changes that may be necessary considering the changing trend of cases globally.

Over the years, several parameters have been developed by various courts to determine jurisdiction over Internet related matters.

In keeping with its liberal approach to issues of jurisdiction in infringement and/or passing off cases, the High Court of Delhi in the first case of its kind, Casio India Co. Limited v. Ashita Tele Systems Fvt. Limited1 passed an injunction against the defendant from using the website on the basis of the fact that the website of Defendant can be accessed from Delhi, which is sufficient to invoke the territorial jurisdiction of this Court.

In the above case the Court further held the said website/ domain name to be similar/deceptively similar to the registered trade mark "Casio" and website/ domain name of the Plaintiff i.e.,, as well as, CasioIndia.Biz and CasioIndiaCo.

Moving ahead on the same subject, a different approach was adopted by another learned single Judge of Delhi High Court in (India TV) Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors.2

Adjudicating the suit of passing off action initiated by the Plaintiff to injunct the Defendants from using the domain name, wherein the defendants were neither residing nor carrying on business within the territorial jurisdiction of the court of the learned Single Judge held the following:-

"46. I am in agreement with the proposition that the mere fact that a website is accessible in a particular place may not itself be sufficient for the courts of that place to exercise personal jurisdiction over the owners of the website. However, where the website is not merely 'passive' but is interactive permitting the browsers to not only access the contents thereof but also subscribe to the services provided by the owners/operators, the position would be different."

The Court also stated that where the website was an interactive one, as opposed to one merely conveying information (static website) and where the target audience and a large consumer base of the website was located, the court could exercise jurisdiction over the matter, irrespective of the location of the defendant. The level of interactivity of the website was held to be of vital importance. Court further held that the website "" of Defendant is not wholly of a 'passive' character. It has a specific section for subscription to its services and the options (provided on the website itself) for the countries whose residents can subscribe to the services including India. The services provided by Defendant can thus be subscribed to and availed of in Delhi i.e. within the jurisdiction of this Court. It was also held that "the Defendant is carrying on activities within the jurisdiction of this Court; has a sufficient contact with the jurisdiction of the court and the claim of the Plaintiff has arisen as a consequence of the activities of Defendant within the jurisdiction of this Court".

The decisions in the Casio and India TV matters are quite disparate, with the former stating that mere access to a website would suffice and the latter stating that commercial transactions at a particular location and the level of interactivity of a website are vital for exercising jurisdiction. Predictably, the law in this regard is quite uncertain. As a result, in the matter of Banyan Tree Holdings, the single bench of the Delhi High Court made a reference to the division bench to clarify the law in this regard.

The case of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr3 was a suit for passing off filed by the Plaintiff who was using the word mark 'Banyan Tree' since 1994 and websites namely and since 1996 against the use of the word 'Banyan Tree Retreat' and advertisement of the same on the website of the defendants. The said suit was filed on the basis of website of the Defendants which was also accessible in Delhi. The most striking peculiarity of the case was that neither of the parties were located within the territorial Jurisdiction of the Court.

In view of the conflicting decisions on the question whether accessibility of a website in a particular place may itself be sufficient for the courts of that place to exercise personal jurisdiction over the owners of the website? and since the Court found the Single Judge Bench decisions of both Casio as well as India TV disparate in its reasoning, Hon'ble Justice S.Ravindra Bhat of Delhi High Court, in the hope to find an answer to this issue referred the same to the Division Bench.

Clearing the air of speculations, the Division bench of the Delhi High Court settled the law on the subject of exercising jurisdiction on the accessibility of a website in case of suit for passing off and/or infringement of a trade mark.

The court held that merely accessing a website in Delhi would not satisfy the exercise of jurisdiction by the Delhi court. Rather, it has to be shown that the defendant "purposefully availed" itself of such jurisdiction, by demonstrating that the use of the website was with intent to conclude a commercial transaction with the site user, and such use resulted in injury or harm to the plaintiff. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. The Hon'ble Court further went on to say that the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as "passive plus" or "interactive", was specifically targeted at viewers in the forum state for commercial transactions."

Undoubtedly the decision of Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr has added a new chapter on the protection of trade mark in India. In 21st century the use of Internet is not limited to e-mailing, surfing, browsing, etc. It is increasingly used by commercial organizations to promote themselves and their products and services. It is also interactively used to buy and sell products. The amplification of the ambit of the principle of 'cause of action' in decision of the Banyan Tree Holding Pvt Ltd would indisputably tighten the screw on the infringement of trade mark and passing off goods or services through the active use of internet in spite of not having a physical presence before the judicial forums.


1. 2003 (27) PTC 265 (Del)

2. 2007 (35) PTC 177 (Del.)

3. CS (OS) No. 894/2008

© 2011. All rights reserved with Vaish Associates Advocates, IPR & IT Laws Practice Division

Flat # 5 to 7, 2nd Floor, 10, Hailey Road, New Delhi 110001 (India)

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

Specific Questions relating to this article should be addressed directly to the author

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions