Websites and their Jurisdictions

Whether the Court can exercise jurisdiction against a person on the ground that such person maintains a website which can be accessed within the jurisdiction of the court was the issue which faced the Delhi High Court in a recent decision. A suit was filed before the High Court for violation of trademark wherein the High Court noted "that neither the plaintiff nor the Defendants is located within the territorial jurisdiction of this court. The Plaintiff is a company having its registered office at Singapore whereas the Defendants 1 and 2 are at Hyderabad. Defendant no. 1 is the promoter of the Defendant no. 2 company." 


It was argued by the side of the plaintiff that "the Defendants have presence in Delhi through their website which is accessible in Delhi. It [was] further contended that the said website is not a passive website. It not only provides contact information but also seeks feedback and inputs from its customers through an interactive web-page. ... Further, ... the services of the Defendants are being offered to the customers in Delhi also because of the ubiquity, universality and utility of the features of the Internet and the World Wide Web and hence the cause of action has arisen within the jurisdiction of this Court.”


On these, the High Court laid the test as under;




42. This Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state. The degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined. For the "effects" test to apply, the Plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the purposes of a passing off or an infringement action (where the plaintiff is not located within the jurisdiction of the court), the injurious effect on the Plaintiff‟s business, goodwill or reputation within the forum state as a result of the Defendant's website being accessed in the forum state would have to be shown. Naturally therefore, this would require the presence of the Plaintiff in the forum state and not merely the possibility of such presence in the future. Secondly, to show that an injurious effect has been felt by the Plaintiff it would have to be shown that viewers in the forum state were specifically targeted. Therefore the "effects" test would have to be applied in conjunction with the "sliding scale" test to determine if the forum court has jurisdiction to try a suit concerning internet based disputes.
58. We summarise our findings on the questions referred for our opinion as under:
Question (i): For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, in what circumstances can it be said that the hosting of a universally accessible website by the Defendants lends jurisdiction to such Court where such suit is filed (“the forum court”)?
Answer: For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant “purposefully availed” itself of the jurisdiction of the forum court. 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.
Question (ii): In a passing off or infringement action, where the defendant is sought to be sued on the basis that its website is accessible in the forum state, what is the extent of the burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to entertain the suit?
Answer: For the purposes of Section 20 (c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant 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. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state.
Question (iii): Is it permissible for the Plaintiff to establish such prima facie case through “trap orders” or “trap transactions”?
Answer: The commercial transaction entered into by the Defendant with an internet user located within the jurisdiction of the forum court cannot possibly be a solitary trap transaction since that would not be an instance of “purposeful” availment by the Defendant. It would have to be a real commercial transaction that the Defendant has with someone not set up by the Plaintiff itself. If the only evidence is in the form of a series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test

The High Court in this process under-took a stock-taking exercise of the decisions in the various courts of law. It  took note of the following decisions as reflective of the legal position abroad on the issue. In regard to the origination of law the High Court took note of the following;


United States
(A) Purposeful availment as a test
(i) International Shoe Co. v. Washington 326 U.S. 340 (1945)
(ii) Burger King Corp v. Rudzewicz 471 U.S. 462 (1985)
(iii) Asahi Metal Industries v. Superior Court 480 U.S. 102 (1987)
(iv) Inset Systems Inc. v. Instruction Set Inc. 937 F.Supp. 161 (D.Conn.1996)
(v) Bensusan Restaurant Corp. v. King, 937 F. Supp.295 (S.D.N.Y. 1996)
(vi) Ballard v. Savage 65 F.3d 1495 (1995)
(vii) CompuServe, Inc. v. Patterson, 89 F.3d 1257(6th Cir. 1996)
(viii) Maritz, Inc. v. CyberGold, Inc., 947 F.Supp. 1328 (E.D.Mo.) (1996)
(ix) Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002)
(B) "Zippo" sliding scale test
(i) Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997)
(ii) Cybersell, Inc. v. Cybersell. Inc. 130 F.3d 414 (1997)
(iii) Uberti v. Leonardo, 181 Ariz. 565
(iv) Desktop Technologies v. Colourworks Reproduction & Designs Inc 1999 WL 98572 (E.D.Pa. 1999)
(v) People Solutions v. People Solutions 2000 WL 1030619 (N.D.Tex., 2000)
(vi) Mink v. AAAA Development 190 F.3d 333 (5th Cir. 1999)
(vii) Winfield Collection v. McCauley 105 F.Supp.2d 746 (E.D.Mich,2000)
(C) The "Effects" test
(i) Louis Feraud Int’l SARL v. Viewfinder Inc 406 F Supp 2d 274 (SDNY 2005)
(ii) Calder v. Jones, 465 U.S. 783 (1984)
(iii) UJEF et LICRA v. Yahoo! Inc. et Yahoo France, Tribunal de Grande Instance de Paris, No RG:00/0538, May 22, 2000 and November 22, 2000
(iv) Remick v. Manfredy, 238 F.3d 248 (2001)
(v) Noonan v. Winston Comp., 135 F.3d 85, 91 (1998)
(vi) Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002)
(vii) Digital Equipment Corp. v. Alta Vista Technology 969 F.Supp 456 (Mass., 1997)
(viii) Nissan Motor Co. v. Nissan Computer Corp.89 F. Supp. 2d 1154 (C.D. Cal.,2000)
(ix) Toys "R" US, v. Step Two, 318 F.3d 446 (2003)
28. To summarise the position in the US, in order to establish the jurisdiction of the forum court, even when a long arm statute exists, the Plaintiff would have to show that the Defendant “purposefully availed” of jurisdiction of the forum state by “specifically targeting” customers within the forum state. A mere hosting of an interactive web-page without any commercial activity being shown as having been conducted within the forum state, would not enable the forum court to assume jurisdiction. Even if one were to apply the „effects‟ test, it would have to be shown that the Defendant specifically directed its activities towards the forum state and intended to produce the injurious effects on the Plaintiff within the forum state.
 Canada 
(i) Morguard Investments Ltd. V. De Savoye, [1990] 3 SCR 1077
(ii) Pro-C Ltd. v. Computer City Inc. (2000) OJ No. 2823 (Ont.Sup.Ct.), 7 CPR (4th) 193
(iii) Patrick Desjean v. Intermix Media Inc. 2006 FC 1395
(iv) Muscutt v. Courcelles (2002) 213 DLR (4th) 577
 United Kingdom
(i) 1-800 Flowers Inc v. Phonenames [2002] FSR 12 CA
 Australia
(i) Dow Jones & Company Inc. v. Gutnick, (2002) HCA 56 (10 December 2002)
 India
(i) Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited 2003 (27) PTC 265 (Del)
(ii) Rediff Communication Ltd. V. Cyber Booth, AIR 2000 Bombay 27
(iii) (India TV) Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors., 2007 (35) PTC 177 (Del.)

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