Topic: India TV Independent News v/s India Broadcast Live Llc
(India Tv) Independent News ... vs India Broadcast Live Llc And Ors.
Equivalent citations: MIPR 2007 (2) 396, 2007 (35) PTC 177 Del - Bench: S K Kaul - Delhi High Court - Date of Judgment: 10 July, 2007
JUDGMENT Sanjay Kishan Kaul, J.
Page 1708 IA. Nos. 651/2007, 1366/2007 & 2611/2007
1. Jurisdiction as Oliver Wendall Holmes said, whatever else or more it may mean, is jurisdictio, in its popular sense of authority to apply the law to the acts of men. Ordinarily jurisdiction is exercised over defendants residing or carrying on business or personally working for gain within the territorial jurisdiction of the court. With the growth of e-commerce and commercial activity over the world wide web, it has become possible for business to be conducted across the globe without actual presence in every place. The present case, inter alia, involves the question of jurisdiction in such a situation.
2. The plaintiff company runs a Hindi news channel INDIA TV which was launched in March 2004. It is stated that the channel is one of the leading Hindi news channels in India having popular programs such as Breaking News and other programs such as India Beats, Jago India, Aap ki Adalat etc.
3. The plaintiff claims to have adopted the mark INDIA TV since 01.12.2002 and is stated to have been using the said mark continuously and extensively. It is stated that the plaintiff applied for the registration of the mark India TV in classes 38 and 41 on 22.01.2004 of which the mark applied for in class 38 was published in March 2006 and the mark in class 41 was published in February 2005. The claim of the plaintiff is on the use of the words India and TV as a combination and disclaimer on the separate use of the words has been published with the marks of the plaintiff published in the trademarks journal. It is claimed that no opposition to any of the advertisements has been received within the statutory period stipulated.
4. It is further stated that the plaintiff had also applied for the registration of the mark INDIA TVs MOST WANTED, which is a popular program of the plaintiffs channel, on 22.06.2004 in class 38 and the same was registered on 29.10.2005 under the registration No. 1291703.
5. The mark INDIA TV is thus stated to be a well known mark having enormous reputation and fame and is stated to be exclusively identified with the plaintiff. The INDIA TV mark and logo written in a distinctive manner is claimed to be the original creation of the plaintiff.
6. Besides the news channel INDIA TV, the plaintiff is stated to be the owner of the domain name indiatvnews.com which is stated to have been registered by the plaintiff on 18.11.2003. It is stated that its channel is made available for live viewing on the said website.
7. It is claimed that the plaintiff came across the website of defendant nos. 1 and 2- indiatvlive.com in January 2007 while carrying out an Internet search. The said website contains the words INDIA TV displayed prominently inside the sketch of a television. On search of the WHOIS database of the registering authority, it was found that the same was registered through GODADDY.COM i. e. defendant No. 3.
8. The plaintiff avers that the mala fides of defendants 1 and 2 is confirmed by the fact that the names and contact addresses of the defendants are not mentioned in the WHOIS database. On a search on the site itself, it is claimed that on a reading of the terms and conditions of the subscription for the website www.indiatvlive.com, it was found that IBL (India Broadcast Live) and www.indiatvlive.com were trademarks and service marks belonging to IBL. The plaintiff claims that on a further search, it came across press releases showing IBL to be a division of Defendant No. 2. It has also been claimed that on the site of the defendants itself, the plaintiff found that it is stated that IBL, LLC enjoys a strategic relationship with Archer Media Communications Incorporated (hereinafter referred to as Archer Media) and the development, technology integration and launch of the website www.indiatvlive.com has been funded by Archer Media.
9. The plaintiff avers that defendants nos. 1 and 2 have no rights or legitimate interest in respect of the impugned domain name and the registration of the domain name has been done with a view to commercially benefit from the mark of the plaintiff. A domain name acts as the address of a company on the Internet and is its web mark just like a trade or service mark and the plaintiff avers that by using of the plaintiffs mark within a sketch of a television on the homepage of defendant nos. 1 and 2, the said defendants are attempting to represent themselves as the plaintiff/representative of the plaintiff. It is alleged that the registration of the impugned domain name by the defendants 1 and 2 constitutes infringement, passing off and dilution of the plaintiffs mark besides unfair competition.
10. The plaintiff thus filed the present suit against the defendants for permanently restraining the defendants from the use of the mark INDIA TV either as a domain name or in any other manner whatsoever on its website links, electronic material etc, from offering services through the said domain name and restraining the defendants from transferring or alienating or in any manner dealing with the said domain name. The plaintiff has also prayed for a mandatory injunction directing the transfer of the said domain name to the plaintiff besides claiming damages and rendition of accounts.
11. The suit has been contested by Defendant No. 1 by filing a written statement. The stand taken in the written statement is that defendant No. 1 company has been in business since the year 2006 and has a global presence including in India. The impugned website indiatvlive.com was publicly launched on 17.08.2006 with another website of the defendant. It is claimed that the said defendant has expended huge amounts of time and money in launching, promoting and marketing the said website. Insofar as the mark INDIA TV is concerned, it is claimed that the said mark has not yet been registered by the Trademark Registry. It is also averred that the words INDIA TV do not possess the basic attributes of a trademark due to their inherent generic nature and that the mark is not capable of registration by virtue of the provisions of Section 9(1)(a), (b) and (c) of the Trademarks Act, 1999 (hereinafter referred to as the said Act) as the same is not capable of distinguishing the services of the proprietor, has reference to the nature, quality and geographical origin of the services and contains marks or indications which have become customary in the current language/bonafide established practice of the trade. Page 1710 It is further claimed that the domain name and logo used by defendant No. 1 is neither identical nor confusingly similar to the stylized mark of the plaintiff. The said defendant claims to have registered other domain names such as chinatvlive.com, irantvlive.com etc. It is averred that the plaintiff has brought the present litigation only after signing an agreement with a rival IPTV (Internet Protocol Television) service provider www.jumptv.com. It has also been pleaded that this court is a forum non conveniens for the purpose of entertaining the present suit.
12. None entered appearance on behalf of defendant No. 2 who was proceeded ex parte on 22.03.2007. Defendant No. 3 is a pro forma party.
13. The plaintiff has also filed IA No. 651/2007 under Order 39 Rules 1 and 2 of the Code of Civil Procedure 1908 (hereinafter referred to as the said code) seeking an interim injunction inter alia restraining defendants 1 and 2 from the use of the mark INDIATV either as part of their domain name indiatvlive.com or in any other manner on their website, links, any other electronic or printed material etc, and restraining defendants 1 and 2 from operating any website under the said domain name and offering its services through the said web site either through subscription and otherwise; restraining the said defendants from transferring, alienating or in any other manner dealing with the domain name and for transfer the said domain name to the plaintiff.
14. On 19.01.2007, an ex parte ad interim injunction was granted restraining defendant Nos. 1 and 2, their directors, officers, agents, licensees, franchises and representatives from using any domain name containing the combination of words INDIA TV as also from transferring or alienating the said domain name to any person.
15. Defendant No. 1 thereafter filed IA 1366/2007 under Order 39 Rule 4 of the said code for setting aside the ex parte ad interim injunction granted on 19.01.2007. The stand taken in the said application is that defendant No. 1 is a company formed and existing in the United States having no Indian presence. It is pleaded that the two promoters of defendant No. 1 company are a well known Indian journalist based overseas and the founder and promoter of Internet portals such as www.SmasHits.com and defendant No. 1 is in the process of filing trademarks and patents based on its unique proprietary combination. It is alleged that the plaintiff filed the present suit only after it entered into an agreement with a rival IPTV platform www.jumptv.com. It is claimed that defendant No. 1 has already invested US $ 1.2 million under various heads in respect of the said website. It is further averred that the mark INDIA TV is not capable of being registered as the words are of generic nature and have direct reference to the nature of business of the plaintiff. It is pleaded that there is no visual similarity between the marks of the plaintiff and defendant No. 1. Defendant No. 1 has also averred that there has been delay on the part of the plaintiff in filing the present suit. The website of defendant No. 1 is stated to have been launched at separate public functions in Los Angeles and Delhi while the plaintiff, which claims to be a premier news channel, states, that it has come across the website only in January 2007.
16. Insofar as the aforementioned applications are concerned, the submissions of learned Counsel for the plaintiff were heard which were concluded on 21.02.2007 where after the matter was listed for the submissions of the learned Counsel for defendant No. 1. On 03.03.2007, IA 2611/2007 was filed by the plaintiff under the provisions of Order 39 Rules 1 and 2 of the said code seeking an injunction against defendant No. 1 from proceeding with the action instituted by it in the Arizona District Courts against the plaintiff in respect of reverse domain name hijacking seeking a declaration of non-infringement of the plaintiffs mark by defendant No. 1. Summons in the said suit are stated to have been received by the plaintiff on 20.02.2007. The plaintiff has also averred in the said application are that the on typing indiatvlive.com the website finally displayed is the website of defendant No. 1 showing the actual IP address instead of indiatvlive.com which is contrary to the interim orders granted on 19.01.2007.
17. It is further averred in the application that defendant No. 1 had filed the action in the Arizona Courts on 20.02.2007 and the factum of filing of the same has not been disclosed by the defendant either orally or in writing before this court although the written statement in the present suit was filed after the institution of the said action. It is claimed that the action is unwarranted and has been attracted on the basis that the Registering Authority i.e. Defendant No. 3 is located in Arizona though the said authority has no role to play insofar as the merits of the matter are concerned. The plaintiff has thus prayed for an injunction against proceeding with the action in the Arizona courts as the suit in this court was instituted prior to the Arizona suit and the arguments on the injunction applications in this court were being heard on a day to day basis. It has also been averred that different views by both courts would cause irreparable injury to both the plaintiff and defendant No. 1 and would be against the interest of justice.
18. The said application has been resisted by defendant No. 1 who has taken the stand that this court is not a court of competent jurisdiction not being the appropriate forum/ forum conveniens. It is averred that all the defendants in the present case are American entities not amenable to the personal jurisdiction of the court. It is stated that the defendants do not reside or work for gain in India and that the promoters of defendant No. 1 are both permanent residents of the US. Defendant No. 1 is a Delaware Corporation. That the registrar of domain names godaddy.com which is the authority which has to ultimately enforce any court order in respect of the impugned domain name is based in Arizona and thus the District Court at Arizona is the forum conveniens to decide the present dispute. The plaintiff has also pleaded that the District Court at Arizona has personal jurisdiction over defendant No. 3 as well as defendant No. 1. It is further claimed that the domain name registration of defendant No. 1 was placed under registrar lock and upon suspension of the domain name, defendant No. 1 had no option but to file a complaint under the relevant US Statute being the Anticybersquatting Consumer Protection Act, 1999.
19. Insofar as the aspect of the identity of defendant No. 1 is concerned, the stand taken is that defendant No. 1 is not obligated to disclose its identity or Page 1712 publicly provide its contact details. It is claimed that defendant No. 1 opted for a private registration of the impugned domain name which is an option commonly available to all domain name registrants. It is also averred that signing of an affidavit by an administrative staff of a law firm on behalf of its client is not barred under law. Defendant No. 1 has also alleged that the plaintiff has been changing its corporate name in each of the pleadings filed and that the plaintiff has misrepresented that its mark INDIA TV has been registered. It has further been averred that while the plaintiff has been asserting that the sale of the impugned domain name by defendant No. 1 would put the plaintiff in a disadvantageous position, even after filing of the suit, the domain name www.indiatv.com was on sale.
20. Besides, the plaintiff has also filed CCP 22/2007 pleading that despite the ad interim injunction granted vide order dated 19.01.2007, this only change made by defendant No. 1 was that when indiatvlive.com was typed in the address bar, the impugned website itself was displayed while in the address bar it was the actual IP address of the website that appeared instead of indiatvlive.com. It is thus averred that this is a case of disobedience of the order dated 19.01.2007.
21. It may be noticed that insofar as IA 2611/2007 is concerned, learned senior counsel for defendant No. 1 had on instructions stated on 05.03.2007 that the said defendant would not take any further steps to prosecute the action in the Arizona Court until the next date. On 25.04.2007, the said statement was confirmed until modification or variation.
22. Learned Counsels for the parties advanced their submissions in respect of all the aforementioned applications at length on various dates.
Anti Suit Injunction
23. The plaintiff has prayed for an anti-suit injunction restraining defendant No. 1 from proceeding with the suit filed by it against the plaintiff in the district courts at Arizona. The plaintiff claims that the subject matter in the two suits is the same and avers that different views of the two courts in the suits would cause irreparable injury to the plaintiff as well as defendant No. 1. Defendant No. 1, on the other hand has claimed that this court has no personal jurisdiction over the defendants and is not the forum conveniens for hearing the present matter.
24. Insofar as the principles governing granting of anti-suit injunction are concerned, it would be useful to refer to the judgment of the Apex Court in Modi Entertainment Network and Anr. v. W.S.G. Cricket Pte. Ltd. . The relevant observations in this behalf are as under:
10. The courts in India like the courts in England are courts of both law and equity. The principles governing grant of injunction an equitable relief by a court will also govern grant of anti-suit injunction which is but a species of injunction. When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in Page 1713 another court including a foreign court, it is called anti-suit injunction. It is a common ground that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court.
24. From the above discussion the following principles emerge:
(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects:
(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;
(b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained must be borne in mind.
(2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens.
(7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.
25. In the judgment of the House of Lords in Airbus Industrie GIE v. Patel and Ors.  2 All ER 257 HL, it was observed inter alia that in England, jurisdiction is founded on the presence of the defendant within the jurisdiction, and in certain specified (but widely drawn) circumstances, in a power to serve the defendant with process outside the jurisdiction. But the potential excesses of common law jurisdictions are generally curtailed by the adoption of the principle of forum non conveniens. It was also observed that as a general rule, before an anti-suit injunction could be granted by an English Court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that the English Forum should have sufficient interest or a connection with the matter in question to justify the indirect interference with the foreign court which such injunction entailed.
26. Thus, in considering whether an anti suit injunction is to be granted or not, as held in Modi Entertainment Network and Anr. (supra), the court is to inquire whether the defendant is amenable to the personal jurisdiction of the court, whether the ends of justice would be defeated by refusal to grant the injunction and where there are more than one forums available, and which is the forum conveniens for bringing the action in question having Page 1714 regard to the convenience of the parties and other factors. The court has also to bear in mind the principle of comity.
Personal Jurisdiction over defendants
27. Defendant No. 1 has taken the stand that neither of the defendants reside or work for gain in India; the promoters of defendant No. 1 are both permanent residents of the United States and Defendant No. 1 is a Delaware State Corporation formed under the laws of the United States and thus, this court does not have personal jurisdiction over the defendants.
28. Learned senior counsel for defendant No. 1 submitted that personal jurisdiction is the power which a court has over a person as opposed to jurisdiction over property etc. In this behalf, reference was made to Blacks Law Dictionary (6th Ed.), page 790, 1144. Learned senior counsel emphasized the distinction between in personam and in personam jurisdiction. The expressions personal jurisdiction, in personam and in personam jurisdiction are defined as under:
In personam. Against the person. Action seeking judgment against a person involving his personal rights and based on jurisdiction of his person, as distinguished from a judgment against property (i.e. in rem). Type of jurisdiction or power which a court may acquire over the defendant himself in contrast to jurisdiction over his property. See also In personam jurisdiction; In rem; Jurisdiction in personam.
In personam jurisdiction. Power which a court has over the defendant himself in contrast to the courts power over the defendants interest in property (quasi in rem) or power over the property itself (in rem). A court which lacks personal jurisdiction is without power to issue an in personam judgment. Pennoyer v. Neff 95 U.S. 714 : 24 L.Ed. 565. See also In rem; Jurisdiction in personam.
Personal Jurisdiction. The power of a court over the person of a defendant in contrast to the jurisdiction of a court over a defendants property or his interest therein; in personam as opposed to in rem jurisdiction. See In personam jurisdiction.
29. Learned senior counsel drew the attention of this court to the legal position as regards personal jurisdiction in the United States. A reference was made to an article entitled Personal Jurisdiction (United States) from wikipedia (http://en.wikipedia.org/wiki/ personal_jurisdiction). It has been observed therein that personal jurisdiction as distinguished from subject matter jurisdiction is the power of the court to require a party (usually the defendant) or a witness to come before the court. States have enacted long arm statutes by which courts can exercise jurisdiction over a business entity or individual located outside the state if for example such entity or individual regularly does business in the state or transacted business with the plaintiff in the state. Personal jurisdiction over non-residents is however limited by the constitutional requirements of due process. A defendant not served with process within the state in which the court sits must have sufficient level of business or personal contacts within the state so that the defendant can reasonably be expected to be sued there. As regards Internet activity, it has been noted that courts are still working out how this applies to law suits Page 1715 regarding Internet activity and business though some courts appear to be in agreement that the passive posting of a website is not enough to establish widespread jurisdiction wherever someone wants to sue the web author over its contents. The purposeful availment test' has been used whether a company can be sued in a specific jurisdiction in the case of Internet companies. Courts specifically look at three factors- (1) availment of a company to another jurisdiction (2) whether the act was done in another jurisdiction and (3) whether the jurisdiction is reasonable for the defendant to be expected to defend himself there.
30. Learned senior counsel submitted that the tests usually applied by American Courts for the exercise of personal jurisdiction over non-resident defendants are (a) existence of sufficient minimum contacts with the forum state (b) claim asserted must arise out of the contact (c) exercise of jurisdiction must be reasonable and (d) effect test. In Cybersell Inc v. Cybersell Inc and Ors. Case No. 96-17087 D.C. No. CV-96-0089-EHC , the US court of Appeals for the 9th Circuit observed that a three part test is used to determine whether personal jurisdiction can be exercised by the district court. The relevant paragraph is as under:
We use a three-part to determine whether a district court may exercise specific jurisdiction over a nonresident defendant:
(1) The non resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections; (2) the claim must be one which arises out of or results from the defendants forum-related activities; and (3) exercise of jurisdiction must be reasonable.
Ballard v. Savage 65 F.3d 1495, 1498 (9th Cir. 1995) (citations omitted).
31. Learned senior counsel contended that mere maintenance of a homepage by defendant No. 1 which is accessible in India is not sufficient to confer jurisdiction on this court particularly where there is no evidence to show that defendant No. 1 specifically targeted audiences in India. In this behalf, reliance was placed on the judgment in GTE Media Services Incorporated v. Bell South Corporation et al. 199 F. 3d 1343 where, the US Court of Appeals, District of Columbia Circuit observed that to establish personal jurisdiction over a non-resident, a court must engage in a two part inquiry; the court must first examine whether jurisdiction is applicable under a states 'long arm' statute and then determine whether a finding of jurisdiction satisfies the constitutional requirement of due process. It was held that that personal jurisdiction over non residents in the District of Columbia could not be based solely on the ability of District residents to access the defendants' websites as this would not by itself show any persistent course of conduct by the defendants in the District within the meaning of the Sub-section of the District Long Arm statute pertaining to causing tortuous injury in the District. It was observed that the plaintiff must show sufficient minimum contacts between the defendant and the forum establishing that the maintenance of the suit does not offend the notions of fair play and justice.
32. In Cybersell Inc case (supra) the question was whether the alleged infringing use of a service mark on a homepage on the WWW suffices for personal jurisdiction in the state where the holder of the mark has its principal place of business. In this case Cybersell Florida was alleged to have infringed the mark of Cybersell Arizona which advertised for commercial services over the Internet. It was observed inter alia, that no court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiffs home state. It was found that Cybersell, Florida conducted no commercial activity over the Internet in Arizona and did nothing to encourage people in Arizona to access its site and there is no evidence that any part of its business was sought to be achieved in Arizona. The interactivity of the web page was limited to receiving the browsers name and expression of interest signing up for the service was not an option nor did anyone in Arizona do so. It was held that as Cybersell, Florida engaged in no commercial activity and had no contacts via the Internet or otherwise in Arizona, it lacked sufficient minimum contacts with Arizona for personal jurisdiction to be asserted over it over there. The court referred to the judgment in Zippo Mfg Co v. Zippo Dot Com, Inc 952 F. Supp 1119 (W.D. Pa. 1997) wherein it was observed that the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.
33. Again, in Rothschild Berry Farm v. Serendipity Group LLC No. C-3-99281 a food seller had sued its competitor for infringement of trademark. The defendant filed a motion to dismiss the suit or transfer the venue. It was observed that the defendants maintenance of an Internet website which customers in Ohio could utilize to order its products, was insufficient without more to subject to the courts personal jurisdiction for the purpose of an Ohio residents infringement suit. The seller had not sold products to customers in Ohio or solicited such sales through catalogues distributed within that state or advertisements appearing in publications that had been circulated in Ohio.
34. In Panavision International LP v. Dennis Toppen; Network Solutions Inc D.C. Case No. CV-96-03284-DDP. Appeal No. 97-55467 it was observed that simply registering someone elses trademark as a domain name and posting a website on the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in another. As noticed in Cybersell case (supra) there must be something more to demonstrate that the defendant directed his activity towards the forum state.
35. Learned senior counsel submitted that where the personal jurisdiction of the court is challenged by the defendant, the burden lies on the plaintiff to come forward with sufficient facts to establish that the jurisdiction is proper. In support of this contention, learned Counsel placed reliance on the judgment in Berthold Types Limited v. European Mikrograf Corporation 102 F. Supp. 2d. 928 where the defendants argued in their motion to dismiss that Illinois does not have personal jurisdiction over them but the plaintiff claimed that the defendants are subject to personal jurisdiction based on the Illinois long arm statute. It was observed that the plaintiff has the burden of demonstrating that personal jurisdiction exists.
36. Insofar as the aspect of this court having personal jurisdiction over defendants 1and 2 is concerned, learned Counsel for the plaintiff referred to the judgment in Compuserve Inc. v. Patterson 89 F. 3d 1257 6th Cir. 1996. It was observed in this case that personal jurisdiction may be either general or specific depending on the nature of contacts in a given case. It was observed that in this case the plaintiff sought to establish specific personal jurisdiction over the defendant. The court observed that the crucial federal constitutional inquiry in such a case is whether given the facts of the case, the non resident defendant has sufficient contacts with the forum state that the district courts exercise of jurisdiction would comport with traditional notions of fair play and substantial justice. The three tests observed to be repeatedly employed by courts to make such a determination are:
a. the defendant must purposefully avail himself of acting in the forum state or causing a consequence in the forum state b. the cause of action must arise from the defendants activities there c. the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make exercise of jurisdiction over the defendant reasonable.
In this case the defendant had claimed to have never visited Ohio but had placed items of shareware on Compuserves system for others to use and purchase. It was found that the defendant frequently contacted Ohio to sell his computer software over compuserves Ohio based system and sent his goods to compuserve in Ohio for their ultimate sale. Compuserve in effect acted as the defendants distributor albeit electronically and not physically. It was thus found that the defendant had sufficient minimum contacts with Ohio to support the exercise of jurisdiction over him.
37. A reference was also made to the ninth circuit opinion in Panavision International LP case (supra) wherein one of the issues involved was of the application of existing rules of personal jurisdiction to conduct that took place in part in cyberspace. In this case again, the court again observed that a three part test is applied to determine if a district court may exercise specific jurisdiction.
a. The non resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.
b. The claim must be one that arises out of or results form the defendants forum related activities c. Exercise of jurisdiction must be reasonable It was found that the defendants registration of the plaintiffs trademark as his own domain names on the Internet had the effect of injuring the plaintiff in California and but for his conduct the injury would not have occurred. The claims of the plaintiff were held to have arisen out of the defendants California related activities. It was thus found that the district court properly exercised personal jurisdiction over the defendant.
38. Learned Counsel for the plaintiff contended that defendant No. 1 has more than sufficient minimum contacts in India for personal jurisdiction to be exercised by this court. It was contended that the plaintiff has enormous goodwill and reputation in India and the goodwill of the plaintiff is being damaged in India. Also, the mark has been diluted in India. Learned Counsel further submitted that the website of defendant No. 1 is an active one which permits subscribers from India to subscribe to its services. In this behalf, learned Counsel referred to the subscribe section of the impugned website which provides a form for subscription to services provided by defendant No. 1s website. The options under the head Country include India. The website can not only be accessed from but also subscribed to from Delhi and it is thus contended that defendant No. 1 is carrying on business for profit or gain from India.
39. Learned Counsel contended that defendant No. 2 is the controlling authority of defendant No. 1 and has its office in India as per the information given on its own website.
40. Reference was also made to the Live Channels section of the website of defendant No. 1 to show that the TV channels offered on subscription by defendant No. 1s website are Indian TV channels and contended that the target audience for the same is the Indian public. It was also pointed out that the web page for PIO TV, one of the channels being shown by defendant No. 1 on the its website, states Live feed 24/7 directly from India. The stand taken in the written statement is also that the website indiatvlive.com became the very first IPTV delivery system of Indian content from India.
41. Learned Counsel referred to the written statement filed by defendant No. 1. The said written statement shows that the promoters of defendant No. 1 are of Indian origin. Para 3 of the written statement states that the website indiatvlive.com was launched at New Delhi on 17.08.2006. Learned Counsel thus contended that the defendants have sufficient minimum contacts with Delhi and thus this court can exercise jurisdiction in the present matter.
42. Learned Counsel for the plaintiff relied on the judgment of learned single judge of this court in Casio India Co. Ltd v. Ashita Tele Systems Pvt. Ltd 2003 (27) PTC 265 (Del) to advance the proposition that the fact that the website of the defendant can be accessed from Delhi is sufficient to invoke the territorial jurisdiction of this court in the light of the judicial principles enunciated. The Court in this case had referred inter alia to the judgment of the High Court of Australia in Dow Jones & Co. Inc. v. Gutnic (2002) HCA 56 wherein it was held that due to the ubiquity, universality and utility of the features of the Internet and World Wide Web, any matter associated with it possesses global jurisdiction.
43. Learned Counsel further also placed reliance on the judgment of the High Court of New Zealand in New Zealand Post Ltd. v. Leng 45 IPR 263. This was a case involving the domain name nzpost. com. It was found that there was a likelihood of misleading or deceiving with the activities of New Zealand Page 1719 Post and its activities. It was observed that either deliberately or by happenstance, the defendants domain name was appropriating NZ posts goodwill at least in New Zealand.
44. Learned Counsel referred to the provisions of Section 20 of the said code to contend that this court has jurisdiction in the present matter. The said provision reads as under:
20. Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
[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.
45. In order for the grant of an anti-suit injunction, one of the conditions is the amenability of the defendant to the personal jurisdiction of the court. The position in the United States, in this behalf, as enunciated in the judgments referred to by the learned Counsels for the parties, is to inquire firstly, whether jurisdiction can be exercised under the 'long arm' statute of the state and secondly, whether the finding of jurisdiction satisfies the constitutional requirements of due process. American Courts basically apply a three part test to determine whether specific personal jurisdiction can be exercised over non-resident defendants. These include an act or transaction within the forum state by which the defendant purposefully avails himself of the privilege of conducting activities within the forum; claim/cause of action arising out of the defendant's forum related activities and whether the acts of the defendant or its consequences have a substantial enough connection with the forum to make the exercise of jurisdiction over the defendant reasonable [Cybersell Inc. case (supra); Panavision International LP case (supra)]. Besides, whether the defendant's conduct had an effect in the forum state (an effects test) would also be seen [Panavision International LP case (supra)].
46. As regards the exercise of personal jurisdiction in cases involving Internet activities, the position appears to be that mere 'passive' posting of a website Page 1720 does not give jurisdiction to the court within whose jurisdiction, the complainant company is present. Thus, personal jurisdiction cannot be exercised over non-residents merely because their website is accessible within the jurisdiction of the court. There has to be something more to indicate purposeful direction of activity to the forum state in a substantial way. In Cybersell Inc. case (supra) limited interactivity of the website restricted to received browser's name and expression of interest but not signing up for the services provided was not considered to be sufficient for the exercise of jurisdiction.
47. Insofar as the position in this country is concerned, there is no 'long arm' statute as such which deals with jurisdiction as regards non-resident defendants. Thus, it would have to be seen whether the defendant's activities have a sufficient connection with the forum state (India); whether the cause of action arises out of the defendant's activities within the forum and whether the exercise of jurisdiction would be reasonable.
48. 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. However, as noticed in the judgment in CyberSell Inc. case (supra), even where a website is interactive, the level of interactivity would be relevant and limited interactivity may also not be sufficient for a court to exercise jurisdiction. In Panavision International LP case (supra), it was found that the registration of the plaintiff's mark as a domain name by the defendant had the effect of injuring the plaintiff in California and therefore the court had jurisdiction. In Compuserve case (supra) again it was found that the defendant had contacted Ohio to sell his computer softwares on the plaintiffs Ohio based systems and sent his goods to Ohio further for their ultimate sale and thus those courts had jurisdiction.
49. In the present case, the website indiatvlive.com of defendant No. 1 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 include India. The services provided by defendant No. 1 can thus be subscribed to and availed of in Delhi (India) i.e. within the jurisdiction of this court. It may also be noticed that an article entitled Archer Entertainment Joins India Minister for Overseas Affairs in Launching IndiaTvLive.com(http://in-sys-con.com/read/243792.htm;http://www.archeremc.com/Media_Center/Company_News/?sp=20060705 quotes IBL CEO Abhesh Verma as saying that The platform provides us the extremely lucrative opportunity to reach both inside and outside of India. Overseas Indians represent the most affluent ethnic consumers of any expatriate group. Within India, we will target a whopping 500 million consumer class with a steadily rising broadband connectivity. Another article Archer launches IPTV Platform for Indian content in the US (http://us.indiatelevision.com/ headlines/y2k6/july/july45.htm) again filed by defendant No. 1 contains a similar statement. This indicates that Page 1721 defendant No. 1 intended to target expatriate Indians as well as Indians within the country. Further the stand taken by defendant No. 1 in its written statement is that defendant No. 1 company has a global presence including in India. Defendant No. 1 also claims to be the first IPTV delivery system of Indian content from India. The website of defendant No. 1 was launched in India as well as in Los Angeles. Thus, defendant No. 1 company has sufficient connection with India.
50. The plaintiff's channel being primarily an Indian news channel intended for Indian audiences, any damage alleged to have been caused or alleged to be likely to arise to the goodwill, reputation etc of the plaintiff would be in India. Further, the alleged damage that may have arisen or may be likely to arise to the plaintiff would be as a consequence of the fact that the impugned website is accessible in India and the services provided can be availed of in India.
51. The result of the aforesaid is that the defendant is carrying on activities within the jurisdiction of this court; has a sufficient contacts with the jurisdiction of the court and the claim of the plaintiff has arisen as a consequence of the activities of defendant No. 1 within the jurisdiction of this court. This court can thus exercise personal jurisdiction over the defendants.
52. The second aspect to be considered in determining whether an anti-suit injunction can be granted is which of the available forums is the forum conveniens for the dispute at hand. It is the stand of defendant No. 1 that this Court is not the forum conveniens for dealing with the present case. It is the case of defendant No. 1 that the said defendant is entirely based in the United States and thus it is the District Court at Arizona, which is the convenient forum to be approached for claiming reliefs.
53. Learned senior counsel for defendant No. 1 placed reliance on the judgment of the House of Lords in Spiliada Maritime Corporation v. Cansulex Ltd.  3 All E.R. 844 in which the Court on consideration of various authorities summarized the principles applicable insofar as granting of stay on the ground of forum non conveniens is concerned. Broadly, the principles are as under:
i. The basic principle is that a stay will be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum having competent jurisdiction where the case may be tried more suitably for the interest of all the parties and the ends of justice.