This article examines the evolving law on territorial jurisdiction in intellectual property infringement suits involving online platforms. Analysing the interplay between Section 20 CPC, Section 62 of the Copyright Act, 1957 and Section 134 of the Trade Marks Act, 1999.
Recently, in Hindustan Unilever Ltd. v. Kwick Living (I) (P) Ltd.1, the Delhi High Court raised a significant legal question of law concerning the determination of the territorial jurisdiction to be exercised by a court for entertaining an action seeking injunction against an alleged infringer for breach of a person’s intellectual property rights.
The issue assumes greater significance where the infringement complained of is caused through a website or online platform, a medium that, by its very nature, has an online presence and can be accessed practically from any corner of the country, across the length and breadth of its territorial spectrum. In such a case, which court is best suited to exercise statutory jurisdiction under Section 62, Copyright Act, 1957, read with Section 134, Trade Marks Act, 1999, read with Section 20, Civil Procedure Code, 1908 (CPC), to entertain the action brought by the party aggrieved complaining infringement and seeking redressal inter alia praying permanent injunction and damages and other consequential relief(s)?
In 2025, a similar question of law, was raised before the Delhi High Court in Kohinoor Seed Fields India (P) Ltd. v. Veda Seed Sciences (P) Ltd.2, wherein the court advanced the reasoning given by it in World Wrestling Entertainment v. Reshma Collection3, and held that in the case of e-commerce, the situs of “carrying on business” extends to every place where a commercial transaction could be concluded and the goods could be bought or sold, irrespective of whether any material is on record to show that a sale was actually effected, so long as the website or platform through which the allegedly infringing goods are offered is itself interactive and potentially capable of concluding such a transaction there. The Division Bench in the case of Kohinoor held that every court having jurisdiction over such a place can adjudicate on the aspect of infringement or passing off.
Though, in the Kohinoor case, the court resolved the dispute before it, it did not resolve the larger doctrine of overlapping territorial jurisdiction of courts under Section 62, Copyright Act and Section 134, Trade Marks Act. This is precisely what has now been referred to a larger Bench in the Hindustan Unilever Ltd. case, a question sharpened by the fact that the internet permits, in principle, every court in the country to claim some accessibility-based connection to a dispute. The proper forum for infringement suits under the Trade Marks Act and the Copyright Act therefore remains an open question.
Though the interpretation which could be possible seems to best serving the legislative purpose of Section 134(2), Trade Marks Act and Section 62(2), Copyright Act is that the plaintiff’s principal place of business ought to be the first court to have jurisdiction for institution of the suit; in the absence of which, jurisdiction shall lie with the court of a place where one or more persons instituting the suit actually reside and carry on business, or personally work for gain, or substantial part of the cause of action have arisen rather than the plaintiff exercising an unfettered right to abandon all such places by approaching a court where none of these lie.
The statutory scheme: An additional, convenience-based forum
Scheme of Section 20 CPC ordinarily requires a suit to be filed where the defendant resides or “carries on business”, or where the cause of action wholly or in part arises. In contrast, under Section 134(2), Trade Marks Act and Section 62(2), Copyright Act which are largely identically worded, and both opening with a non obstante clause, carve out an additional forum: For the person instituting the suit (plaintiff), at a place where it “actually and voluntarily resides or ‘carries on business’ or personally works for gain”, regardless of where the defendant is or where the cause of action arose. Each provision reads: “Where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain”- a clause plainly addressed to joint plaintiffs (co-authors, joint proprietors of a mark, or, under the Explanation to Section 134(2), a registered proprietor suing together with a registered user), not to the multiple “presences” a single corporate plaintiff might contrive to manufacture for itself across the country.
Section 20 CPC‘s own Explanation supplies the default rule for a corporate plaintiff or defendant:
Explanation.—A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
A subordinate office only attains significance when the cause of action, either substantially or in entirety, arises there. Use of the term “shall be deemed” clearly indicates that a legal fiction is created to confer jurisdiction in the court of the place wherein the principal office is situated, with everything else being an exception keyed to where the dispute actually takes place.
What amounts to “carries on business”
In Dhodha House v. S.K. Maingi4, the Supreme Court was called upon to construe the legal expression “carries on business” as it appears in Section 20 CPC. It reasoned that, since the very same expression is used not only in Section 20 CPC but also in Section 62, Copyright Act and Section 134, Trade Marks Act, the meaning assigned to it by judicial interpretation under Section 20 CPC must, as a matter of ordinary statutory construction, carry the same meaning under the Copyright Act and the Trade Marks Act.
Since the legislature choose to use an identical phrase in provisions occupying the same field, it can safely be presumed to have intended it to bear a single, consistent meaning across all three. Applying the settled, agency-based test evolved under Section 20 CPC, the Supreme Court has held that a party can “carry on business” through an agent, without personal presence, provided that among other conditions, the agent is a special agent transacting exclusively for the principal, and that the essential part of the business is in fact transacted at that place; the mere fact that goods are sold at a place does not mean that the party carries on business there.
Deploying that very same logic, there can be no gain saying that a defendant, or for that matter a plaintiff, “carries on business” at a place merely because the alleged infringing goods are available for sale there through a third-party e-commerce platform. Such a platform is not a special agent transacting exclusively for that party’s business, within the meaning that the Dhodha House case itself required; it is, on the contrary, a general agent, providing the modes and means of commerce for an unrelated multitude of sellers and an unrelated multiplicity of goods, with its own dealings in no way limited to that one party or that one good. If the conditions of the Dhodha House case govern “carries on business” uniformly across Section 20 CPC, Section 62, Copyright Act and Section 134, Trade Marks Act, then a listing on a general-purpose marketplace on an e-commerce platform, accessible to a particular place, would alone not conform jurisdiction on court basis that business is carried on within territorial limitation of that court.
Section 62, Copyright Act and Section 134, Trade Marks Act
The Supreme Court in the case of Indian Performing Rights Society Ltd. v. Sanjay Dalia5, has extensively examined the legislative intent and purpose for enacting Section 62, Copyright Act as well as Section 134, Trade Marks Act.
While undertaking that exercise, the Supreme Court has clarified that these provisions do not oust Section 20 CPC, but merely add a forum convenient to the plaintiff—the person instituting the suit proceedings. It explains that the intendment of the concerned provisions of the Copyright Act and the Trade Marks Act is that the plaintiff should not have to go to far-flung places, rather the plaintiff may go to a principal office, residence or where he carries on business or works for gain. However, the said provisions cannot be construed as a tool in the hands of the plaintiff to deprive the defendant of a convenient forum or to harass the defendant by dragging it to a distant place. The provisions must, therefore, be interpreted in a manner that advances their legislative purpose while preventing the mischief of causing undue inconvenience to either party.
This is the doctrinal heart of the matter, and it is worth acknowledging that the Supreme Court itself recognised, in as many words, that an expansive reading of Section 62, Copyright Act, as well as Section 134, Trade Marks Act, is capable of being turned into precisely the opposite of what the provision was meant to do, a weapon for depriving the defendant of a remedy and for harassing the defendant by dragging him to a distant place, at the plaintiff’s convenience, motivated by an extraneous purpose or object, leading, in effect, the counter-mischief.
Virtual shopping doctrine
In the era of “carrying on business” vis-à-vis internet-based website accessible from multiple jurisdictions, cause of action may be said to arise in overlapping jurisdictions, enabling an intellectual property rights holder to institute proceedings in more than one forum.
In such a situation, the Delhi High Court, in the case of Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy6, has categorically held that mere accessibility of a website from multiple jurisdictions shall not be deemed to raise a presumption of jurisdiction being conferred on multiple courts, unless the plaintiff clearly demonstrates, from its pleadings, the purposeful targeting of a particular place by the defendant that has resulted in consequent injury to the plaintiff.
However, in the World Wrestling Entertainment case 7, a Division Bench of the Delhi High Court has considerably diluted the ruling in Banyan Tree by holding that a plaintiff’s own interactive website, through which a Delhi customer’s order could be placed and paid for, meant that the plaintiff “carried on business” in Delhi which amounts to a “virtual shop” being treated as jurisdictionally equivalent to a physical one.
Neither the aforesaid decision in Banyan Tree case and World Wrestling Entertainment case, on its own terms, disturbed Sanjay Dalia‘s core constraint that the additional forum cannot be used to bypass a principal office where the cause of action also arose. But the two lines of authority obviously were on a collision course: One insisting that Section 134, Trade Marks Act and Section 62, Copyright Act, is a narrow, convenience-based, principal-office-anchored forum; the other holding that a plaintiff “carries on business” wherever its website can transact, which, for any entity trading online, is potentially everywhere in India.
The real purpose of Section 134(2)/Section 62(2): Convenience, not a forum-shopping charter
The Supreme Court in the case of Sanjay Dalia has held that the intent of Section 134(2), Trade Marks Act and Section 62(2), Copyright Act is to spare the owner of a mark or a copyright the burden of chasing an infringer to the infringer’s own town, by letting the mark/copyright holder sue instead where they actually and voluntarily resides, or carries on business, or personally works for gain.
The language of the provision is plain and simple that convenience is meant to be found first — the principal office, where the plaintiff genuinely, ordinarily conducts its affairs. The reference to “more than one such persons” resides or carries on business exists only to accommodate joint plaintiffs, co-authors, co-proprietors, a registered proprietor suing alongside a registered user, but not as license for a plaintiff to claim as many “residences” as it has branch offices, marketing agreements, or products listed on third-party websites, for invoking jurisdictions of multiple courts.
The provisions relating to forum convenience under the Copyright Act and the Trade Marks Act were never intended to function as a menu card for a plaintiff, enabling it, at its own whim and fancy, to voluntarily eschew the forum where its principal office is situated — which would ordinarily be regarded as the most convenient forum — and instead select whichever forum, for reasons entirely extraneous to the statutory purpose, whether a perceived tactical advantage, the defendant’s unfamiliarity with or inconvenience in the forum, the plaintiff’s preferred counsel, or simply a perception that the jurisdiction is more claimant-friendly, it considers strategically attractive.
A plaintiff cannot thereafter be permitted to reverse-engineer a jurisdictional “connection” by taking recourse to a stray branch office or, for that matter, to submit that listing of the allegedly infringing product on a nationwide e-commerce marketplace over which neither party exercises any meaningful control, and thereby seek to anchor the suit in that forum. To permit such an approach would be to convert a statutory provision intended to facilitate access to justice into an instrument for forum shopping, conferring upon the plaintiff an unfettered liberty to manufacture a jurisdictional nexus after having selected its preferred forum.
That was precisely the mischief the Supreme Court warned against in the Sanjay Dalia case: A plaintiff depriving the defendant of a remedy and harassing him by dragging him to a distant place. It bears emphasis that the harassment the Sanjay Dalia case was concerned with cuts both ways. It is the defendant who is dragged to an unfamiliar forum, often far from where either party actually does business, merely because the plaintiff found it convenient (or advantageous) to plead a manufactured nexus there instead of suing at home.
Post the Sanjay Dalia case, the court advanced the “virtual shop doctrine”, as articulated in the World Wrestling Entertainment case and reiterated in the Kohinoor case, as a guiding jurisprudence for conferring territorial jurisdiction over multiple courts in cases involving infringed goods sold through an e-commerce website, capable of concluding a transaction, thereby giving rise to a cause of action in part, if not in whole, even where the defendant may have little or no control over the website’s operation.
Though the doctrine of virtual shopping looks doctrinally coherent, yet if its cumulative effect is left unchecked, it risks producing precisely the counter-mischief that the Sanjay Dalia case cautioned against. Virtually every product sold in India today is, in some form, listed or discoverable online; virtually every corporate website is technically “accessible”, and in terms of the World Wrestling Entertainment case and Kohinoor case potentially “transaction-capable” from any State in the country. If that alone is enough to find “carrying on business”, giving rise to cause of action for conferring jurisdiction, then the legislative object and purpose of Section 62, Copyright Act and Section 134, Trade Marks Act become merely optional in practice for any plaintiff, precisely the outcome the Sanjay Dalia case decided to ward off.
None of this is to suggest that internet-based commerce should be jurisdictionally irrelevant, or that the Banyan Tree’s case “purposeful targeting” enquiry has no continuing role, plainly it does, particularly against a defendant genuinely and specifically directing commercial activity at a forum where neither party otherwise has any presence.
Conclusion
In light of the above, in the Hindustan Unilever Ltd. case, the Delhi High Court has referred the following questions of law to a larger Bench for resolution of the issue of territorial jurisdiction under Section 20 CPC, Section 134(2), Trade Marks Act and Section 62(2), Copyright Act, with particular emphasis on the judgment of the Supreme Court in the Sanjay Dalia case:
1. Whether intellectual property suits are governed solely by Section 20 CPC, by Section 134, Trade Marks Act, or by Section 62, Copyright Act, or by an interplay of all those provisions, and if so, how?
2. Whether a corporate plaintiff must sue only where its principal or registered office is situated, when a part of the cause of action has arisen there?
3. What jurisdictional rule should govern online transactions in intellectual property disputes, in light of the conflicting approaches taken in the Banyan Tree case, World Wrestling Entertainment case, and Kohinoor case?
The larger Bench’s ruling will decisively carry consequences well beyond this one dispute. For over a decade, territorial jurisdiction jurisprudence has varied widely across a range of cases: World Wrestling Entertainment case and Kohinoor case reading from “carrying on business” expansively to match the internet’s borderless reach; the Banyan Tree case insisting on purposeful targeting and actual injury; and the Sanjay Dalia case warning against turning Sections 134, Trade Marks Act and Section 62, Copyright Act, into tools of forum-shopping. This has clogged courts with litigants who chase the most convenient forum, has burdened defendants with distant and often tenuous suits, and, in an economy where nearly every product and website is technically accessible nationwide, risks draining territorial jurisdiction of any real limiting force. As questions remains: What degree of territorial nexus should be required before an online presence can confer jurisdiction in an action for infringement of intellectual property rights? Answer to this with authoritative judicial pronouncement, bound to bring certainty in cases involving infringement of intellectual property rights in an increasingly online economy.
*Advocate, L & D Advocates & Solicitors (LDAS Chambers), New Delhi. Author can be reached at: love@ldaschambers.com.
4. (2006) 9 SCC 41 : (2005) 1 IPLR 1.
5. (2015) 10 SCC 161 : (2016) 1 SCC (Civ) 55.
