CABLE NEWS NETWORK INC vs. CTVN CALCUTTA TELEVISION NETWORK PVT LTD

Neutral Citation Number : 2023:DHC:2862 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI th Pronounced on: 28 April 2023 + CS (COMM) 309/2021 & IA 7844/2021 & IA 9228/2021 CABLE NEWS NETWORK INC ..... Plaintiff Through: Mr. Pravin Anand, Mr. Dhruv Anand, Ms. Udita Patro, Ms. Chitra Subbiah, Ms. Kavya Mammen, Ms. Harini V. And Ms.Sampurnaa Sanyal, Advs. versus CTVN CALCUTTA TELEVISION NETWORK PVT LTD ..... Defendant Through: Mr. Chaitanya and Mr.Kartik Pant, Advs. CORAM: HON'BLE MR. JUSTICE C.HARI SHANKAR JUDGMENT % 28.04.2023 1. By this judgment, I proceed to decide IA 7844/2021, preferred by the plaintiff against the defendant under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), seeking interlocutory injunctive reliefs and IA 9228/2021, by the defendant against the plaintiff under Order VII Rule 10 of the CPC, seeking the return of the plaint for want of territorial jurisdiction. Needless to say, if IA 9228/2021 is allowed, IA 7844/2021 would not survive for consideration, as this Court would, then, be coram non judice , and the plaint would have to be returned to the plaintiff to be presented before the appropriate Court. Signature Not Verified CS(COMM) 309/2021 Page 1 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 The plaint 2. The plaintiff Cable News Network Inc. is a company incorporated in Delaware, US, with its headquarters in Atlanta, Georgia. It is a subsidiary of Turner Broadcasting System, Inc., established in 1980 for running a news channel in English under the brand CNN, with the logo . The device mark stands registered, in favour of the plaintiff, under Classes (i) 9, for “video tapes, video cassettes, motion pictures, video discs; tapes and cassettes for reproducing sound and visual images; television and cable transmitting and receiving st apparatus and parts thereof; and accessories thereof”, w.e.f. 31 December, 1991, (ii) 16, for “printed matter; books, program guides, program transcripts, photographs; stationery; instructional; and teaching st materials (except apparatus); playing cards”, w.e.f. 31 December 1991, (iii) 38, for “telecommunication services, in particular broadcasting and transmission of radio and television programs, of sound and images and information, also via wire, cable, satellite, radio, global or other computer network and similar technical equipment telecommunications of information (including webpages), computer programs and any other data; electronic mail services; providing user access to the Internet (service providers); providing telecommunications connections to the Internet or databases: telecommunication gateway services; online retail services (e-commerce); collection and supply of news, messages and information; agency for press Signature Not Verified CS(COMM) 309/2021 Page 2 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 rd and non-commercial information”, w.e.f. 23 February, 2004 and (iv) 41, for “education services; entertainment services particularly television programming, online entertainment and information services, radio and television entertainment, production, reproduction, projecting and rental of motion pictures and videos, production and reproduction of audio and video recordings on audio and/or video carriers of different kind projecting and rental of these video and/or audio carriers, production and arrangement of radio and television programs, information relating to entertainment or education provided online from a computer database or the Internet; providing rd online electronic publications (not downloadable)”, w.e.f. 23 February 2004. 3. The plaintiff asserts that all its services are made available to the public under the logo . 4. The defendant also provides news broadcasting services under the name CALCUTTA NEWS, through its Satellite TV channel, and has been licensed for providing such services under the name CALCUTTA NEWS and CTVN-AKD-PLUS. The defendant also operates a website https://calcuttanews.tv/livetv.php. The defendant uses the trademarks and . The plaintiff claims to have come to learn of these activities in September 2020, when the Trade Mark registry advertised Application No 4630507, of the defendant, for registration of the mark . On a search of the database of the Signature Not Verified CS(COMM) 309/2021 Page 3 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 Registry of Trade Marks, the plaintiff claims to have come to learn that the defendant was holding Registration No 2830122 for the mark th st , in Class 38, w.e.f. 17 October 2014, with a user claim of 1 January 2006, for “Television Broadcasting Services”. The plaintiff has disputed the correctness of the defendant’s user claim of the st mark since 1 January 2006, submitting that, in Title Suit 17/2021, filed by the defendant against the plaintiff before the learned Commercial Court, Rajarhat, the defendant has admitted that it had commenced television broadcasting in 2011 and had coined the mark only in 2014. Thus, contends the plaintiff, the defendant had obtained registration of the mark by fraud. 5. Further research, asserts the plaint, revealed that the defendant has also applied, vide Application No 4802072, for registration of the mark . 6. The defendant also operates through its Facebook, Instagram and Twitter social media accounts as well as on YouTube. It is claimed that the mark is regularly in use by the defendant. th 7. On 27 April 2021, the plaintiff addressed a notice to the defendant, calling upon the defendant to cease and desist from further using the marks , or . The defendant was also requested to withdraw Applications number 4630507 and 4802072 submitted by it Signature Not Verified CS(COMM) 309/2021 Page 4 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 to the Registry of Trade Marks and to apply for cancellation of Registration No 2830122 already granted to it. nd 8. Vide response dated 2 June 2021, the defendant declined to accede to the request of the plaintiff, claiming that the marks of the defendant were dissimilar from those of the plaintiff. 9. The plaintiff has also filed oppositions, before the Registry, against registration of the marks and . 10. The defendant has instituted Title Suit 17/2021 before the Commercial Court at Rajarhat, alleging that groundless threats were being extended by the plaintiff to it. 11. The plaintiff further alleges that, till 2014, the defendant was conducting its business under the name Uttar Bangla, and commenced using the name CALCUTTA NEWS, with the acronym CN only in 2014. This, according to the plaintiff, manifests the intention of the defendant to copy the plaintiff’s logo. The plaintiff alleges that the design of the defendant’s logo, with the C and N joined at the base, clearly approaches the plaintiff’s logo so close as to create confusion. The use of the defendant’s mark, according to the plaintiff, is bound to lead the viewer into believing, at the very least, the existence of a nexus, affiliation, endorsement or association with the plaintiff, especially as the services provided by the defendant under the impugned mark are the same as the services provided by the plaintiff. The reputation of the plaintiff, and the extent of its presence in the electronic and virtual media, it is submitted, exacerbates the Signature Not Verified CS(COMM) 309/2021 Page 5 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 possibility of such confusion. Clearly, therefore, submits the plaintiff, the impugned mark of the defendant infringes the plaintiff’s registered 1 trademarks within the meaning of Section 29(2)(b) of the Trade Marks Act, 1999. 12. The plaintiff alleges that the defendant is also seeking to capitalize on the plaintiff’s reputation, thereby rendering it guilty of passing off its services as those provided by the plaintiff. The plaintiff alleges that, as there is no viable explanation for the defendant changing its name to CALCUTTA NEWS in 2014, adopting the abbreviation CN, and using a logo which is deceptively similar to the logo of the plaintiff with identical letterings, the mala fides of the defendant are apparent. The fact that the defendant has, while applying for registration of the mark, claimed use since 2006, when it was not even in existence, it is submitted, further indicates mala fides on the part of the defendant in adopting a logo similar to that of the plaintiff. 13. It is further submitted that the logo, with its unique style of lettering, is indelibly associated, in the mind of the consumer and the viewing public, with the plaintiff, and the use of a deceptively similar mark, with similar lettering, is bound to lead to confusion or, at the very least in the viewing public presuming an association between the 1 29. Infringement of registered trade marks . – (2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of— (a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or (b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or (c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark. Signature Not Verified CS(COMM) 309/2021 Page 6 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 defendant and the plaintiff. The repercussions are, it is submitted, far- reaching, as the channels of the plaintiff and the defendant are both engaged in disseminating of news and other information. Any transmission of wrong or misleading information by the defendant would, therefore, irreversibly tarnish the image of the plaintiff, as well as its reputation in the national as well as international market. 14. The plaintiff has, in these circumstances, approached this Court with the present plaint, seeking (i) a decree of permanent injunction, restraining the defendants, and all others acting on their behalf, from using the impugned marks , , or for their channel, over which news and other material is broadcasted, or for any other purpose whatsoever, as well as from using any other mark which may be deceptively similar to the plaintiff’s registered device mark, and (ii) a direction to the defendants to remove all information and content uploaded on the Internet, either on their website or Facebook, Instagram or Twitter social media accounts or on YouTube, which bear the impugned mark, or any other mark which is identical or deceptively similar to the plaintiff’s registered trademarks, apart from delivery up, rendition of accounts, costs and damages. The present applications 15. The plaintiff has filed, with the suit, IA 7844/2021, under Order XXXIX Rules 1 and 2 of the CPC, seeking interlocutory injunctive Signature Not Verified CS(COMM) 309/2021 Page 7 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 reliefs against the defendant using the impugned marks. The defendant has filed a reply to the said application, and the plaintiff has filed a rejoinder thereto. 16. The defendant has, in its turn, filed IA 9228/2021, under Order VII Rule 10 of the CPC, disputing the territorial jurisdiction of this Court to entertain the present suit and, therefore, seeking that the plaintiff be returned to the plaintiff for presentation before the competent forum. Reply and rejoinder also stands filed in the said application. 17. Mr. Pravin Anand and Mr. Chaitanya, learned Counsel, were heard at length on these applications which are disposed of, by the present judgment. The applications are being dealt with seriatim. IA 9228/2021 - by the defendant under Order VII Rule 10, CPC Rival contentions 18. An application under Order VII Rule 10, or Rule 11, of the CPC, has to be decided solely on the basis of the averments in the plaint. If the averments in the plaint do not make out a case of proper invocation of forum jurisdiction, the plaint has to be returned for presentation before the appropriate forum. Allied Blenders & 2 Distillers Pvt Ltd v. R.K. Distilleries , rendered by a Division Bench of this Court, clearly holds that “in the backdrop of Order VII Rule 10, it is only the averments contained in the plaint that have to be seen” and, further, that the matter proceeds on demurrer, deeming the 2 (2017) 69 PTC 493 (DB) Signature Not Verified CS(COMM) 309/2021 Page 8 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 averments in the plaint to be true, relying on the following exordium, to be found in the judgement of an earlier Division Bench in R.S.P.L. 3 Ltd v. Mukesh Kumar :

principle stands enunciated in the following words, from the judgement of the Supreme Court in Exphar S.A. v. Eupharma 4 Laboratories Ltd :

eschewed, from consideration, all such averments as do not find place in the plaint instituted by the plaintiff. In the process, submissions advanced in the reply, filed by the plaintiff to IA 9228/2021, which are unsupported by any averments in the plaint, have also been omitted from consideration. I may note that the plaint, in the present case, has never been amended by the plaintiff. Submissions of Mr Chaitanya, for the defendant 3 rd Judgment dated 3 August 2016 in FAO (OS) 145/2016 4 (2004) 3 SCC 688 Signature Not Verified CS(COMM) 309/2021 Page 9 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 20. Mr. Chaitanya submits that, in para 49 of the plaint, the plaintiff has cited only Section 20 of the CPC, to justify invoking the territorial 5 jurisdiction of this Court in the present case. Para 49 of the plaint reads: “49. It is submitted that this Hon’ble Court has the jurisdiction to try and entertain the present suit under Section 20 of the Code of Civil Procedure in view of the following: a. The Defendants are carrying on business within the territory of this Hon’ble Court through their website, social media pages, YouTube Channels at: i. Website – https://calcuttanews.tv/livetv.php ii. Facebook– https://www.facebook.com/livecalcuttanews/; iii. Instagram– https://www.instagram.com/calcuttanewstv/ and http://www.instagram.com/akdcalcuttanews/; iv. Twitter– https://twitter.com/calccutta_news?ref_src=twsrc% 5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor v. YouTube – https://www.youtube.com/channel/UCJ316MHOz5 exAR1TW_meOGQ which can all be accessed by consumers in Delhi, wherein these consumers are being specifically targeted. a. The Defendants are offering new services under the impugned logos within the territory of this Hon’ble Court.

Signature Not Verified CS(COMM) 309/2021 Page 10 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 Therefore, the cause of action in the present case has arisen within the territory of this Hon’ble Court. b. The Plaintiff is carrying on business in Delhi. Its services through its website are offered in Delhi and are also aimed at viewers in Delhi. Moreover, the website of the Plaintiff is interacted in nature. They are directed to and can be accessed by consumers all over India and in Delhi. ” 21. Mr. Chaitanya submits that the invocation of the jurisdiction of this Court, by the plaintiff, is unjustified as (i) the registered office of the defendant is in Kolkata, (ii) the defendant has no subordinate office outside the State of West Bengal, (iii) the defendant has no office or place of business in Delhi, (iv) no commercial transaction with the defendant has been, or is being, conducted within the territorial jurisdiction of this Court, (v) mere accessibility of a website within the territorial jurisdiction of a Court does not confer, on that Court, jurisdiction to entertain a trademark dispute, (vi) it is necessary for the plaintiff to establish, in such cases, that the defendant is engaged in commercial activity in the State in which the suit is being filed, by targeting its website specifically at customers within that State, and there was no evidence to indicate specific targeting, by the defendant, of customers in Delhi, (vii) the defendant’s website was not interactive, and only permitted browsing, reading or viewing of the content available thereon, none of which was subscription-based, so that no commercial transaction could be concluded across the website, and Signature Not Verified CS(COMM) 309/2021 Page 11 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (viii) the defendant’s website and social media handles were all targeted at persons who understood Bengali. Mr. Chaitanya has cited, in support of his submissions, the judgements of Division Benches of this Court in Banyan Tree 6 Holding (P) Ltd v. A. Murali Krishna Reddy and Impresario 7 Entertainment & Hospitality Pvt Ltd v. S & D Hospitality , as well as the judgment of a learned Single Judge in Karans Gurukul Classes v. 8 Gurukul Classes IIT Division . 22. Mr. Pravin Anand contends, per contra , that the fact that the defendant’s channel, bearing the impugned mark, can be accessed, and the contents thereof viewed, within the territorial jurisdiction of this Court, itself amounts to purposeful availment, by the defendant, of the jurisdiction of this Court. The users and viewers who view the defendant’s channel are, he submits, of necessity being specifically targeted by the defendant, and the defendants are benefiting, commercially, from such viewership. The reliance, by the defendant, on the fact that no commercial transactions can be concluded across its website is therefore, countered with the contention that the defendant is commercially profiting from the access, to its website, by viewers. Reliance has also placed, by Mr. Pravin Anand, on the following recital, contained on the YouTube page of the defendant: “Calcutta News is a 24 x 7 News Channel for the purpose to serve not only the people of West Bengal but also the Bengali communities throughout the Globe.” Mr. Pravin Anand submits that there are over 2 lakh Bengalis residing in Delhi. At the very least, he submits, these 2 lakh Bengalis are 6 (2010) 42 PTC 361 (DB) 7 246 (2018) DLT 337 8 261 (2019) DLT 102 Signature Not Verified CS(COMM) 309/2021 Page 12 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 unquestionably being targeted by the defendant within the territorial jurisdiction of this Court even through its news Channel, apart from its YouTube page and other social media handles and mobile applications. 23. Mr. Anand disputes Mr. Chaitanya’s contention that the content on the defendant’s website is exclusively in Bengali. He submits that the defendant’s website https://calcuttanews.tv/index.php has a specific URL https://cnrashtriya.com/index.php, which provides exclusively Hindi content, and which also bears the infringing CN mark. Screenshots from the website have been filed with the reply. 24. Reliance is also placed, by Mr. Anand, on an admission, by the defendant, before the learned Commercial Court in Rajarhat in para 24 of the plaint instituted by the defendant before the said Court, to the effect that the defendant had spent huge amounts of money for publication and popularisation of its trademarks, which had attained sufficient visibility and recognition in West Bengal “ and also throughout the Country, India ”. A copy of the plaint has also been filed with the reply. 25. The defendant has filed a rejoinder. In the rejoinder, the defendant has reiterated that its website does not contain any subscription-based content and that a viewer who logs on to the website can only browse, read or view the content, but cannot interact with it. Much less, it is contended, could any commercial transaction be completed across the website. Signature Not Verified CS(COMM) 309/2021 Page 13 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 26. Every website, submits the defendant, is accessible the world over. Equally, the social media pages of the defendant on Instagram, Twitter and YouTube are also globally accessible. The contention of the plaintiff that the defendant is purposefully targeting viewers in Delhi is, therefore, it is submitted, incorrect. Mere accessibility does not confer jurisdiction. Reliance has been placed, in this context, on the judgment of a learned Single Judge of this Court in News Nation 9 Networks Pvt Ltd v. News Nation Gujarat . Mere accessibility of the defendant’s social media handles in Delhi, without any payment being required to be made therefor, and in the absence of the possibility of any commercial transaction taking place across the said social media pages cannot, it is submitted, confer jurisdiction on this Court. 27. The defendant has denied the allegation, in the plaint, that the defendant has booking agents in Delhi. The affidavit of the plaintiff’s investigator has also been denied as having no evidentiary value. Without prejudice, the defendant has placed reliance on the judgment 10 of the Supreme Court in Dhodha House v. S.K. Maingi to contend that the presence of the agent within the territorial jurisdiction of a Court would justify invocation of such jurisdiction only where the agent was a Special Agent who attended exclusively to the business of the principal and carried on business in the name of the principal; in other words, an agent in the strict sense of the term. The defendant has submitted, categorically, that it has not employed any person to secure advertisements for it. Assuming there were persons who offered to advertise for a commission, they could not, it is submitted, confer jurisdiction of this Court. It is further submitted that the words 9 2017 SCC OnLine Del 12698 10 (2006) 9 SCC 41 Signature Not Verified CS(COMM) 309/2021 Page 14 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 “carrying on business” require that the essential business of the defendant is carried on within the jurisdiction of the Court which the plaintiff has approached. Analysis 28. I first address Mr. Chaitanya’s submission that the plaintiff has to be restricted, in his argument on the point of territorial jurisdiction, to Section 20 of the CPC, being the only provision invoked, in that regard, in the plaint. 29. The judgment of the Division Bench of this Court in Ultra 11 Home Construction Pvt Ltd v. Purushottam Kumar Chaubey , in para 14, clearly holds that “in addition to the places where suits could be filed under Section 20 of the Code, the plaintiff can also institute a suit under the Trade Marks Act, 1999 and the Copyright Act, 1957, as the case may be, by taking advantage of the provisions of section 12 134(2) or section 62(2), respectively. Section 134, therefore, provides an additional recourse, to a plaintiff, over and above the recourse available under Section 20 of the CPC.

Signature Not Verified CS(COMM) 309/2021 Page 15 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 30. Mr. Chaitanya stressed on the fact that the invocation of the jurisdiction of this Court has been sought to be justified, in para 49 of the plaint, only on the anvil of Section 20 of the CPC. Citing Karans 8 Gurukul Classes , Mr. Chaitanya sought to submit that the issue of territorial jurisdiction had, therefore, to live, or die, with Section 20. Impliedly, therefore, what was sought to be contended was that Section 134 of the Trade Marks Act was not open for invocation by the plaintiff. 31. I cannot agree. 32. Pleadings bind parties on facts. Statutory provisions constitute the extant law, and it is open to every citizen to take advantage of, or invoke, a statutory provision which, according to him, is in his favour. The factual foundation for invocation of the provision has, however, necessarily to find place in the plaint. No party can be permitted to argue facts which are not pleaded. However, where the factual foundation is present, the omission, in the plaint, to specifically cite a statutory provision cannot operate as estoppel against the plaintiff seeking its benefit. In the present case, in fact, it is specifically pleaded, in para 49 of the plaint, that the plaintiff carries on business in Delhi, and offers services, through its website, in Delhi, targeted at viewers in Delhi. These averments are sufficient, on facts, to merit examination of the aspect of territorial jurisdiction not only from the point of view of Section 20 of the CPC, but also from the point of view of Section 134 of the Trade Marks Act. Signature Not Verified CS(COMM) 309/2021 Page 16 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 33. Before arriving at a finding regarding territorial jurisdiction, it is necessary, in my view, to consider six judgments, two by the Supreme Court and four by Division Benches of this Court, all of which, needless to say, bind me. They are, chronologically, 10 (i) Dhodha House , 6 (ii) Banyan Tree , 13 (iii) World Wrestling Entertainment v. Reshma Collection , 14 (iv) Indian Performing Rights Society Ltd v. Sanjay Dalia (“ IPRS ”, hereinafter), 11 (v) Ultra Home Construction and 15 (vi) Tata Sons Pvt Ltd v. Hakunamatata Tata Founders . 10 34. Dhodha House 34.1 The Supreme Court was, in this case, seized with two appeals, against judgments of High Courts which had taken opposing views on the aspect of territorial jurisdiction. The case involved allegations of trademark as well as copyright infringement. Para 20 of the report, however, discloses that there was, at that time, no provision in the Trade and Merchandise Marks Act, 1958 (which was the statute under consideration in that case – “the 1958 Act”, hereinafter), pari materia with Section 62(2) of the Copyright Act, which permitted an infringement suit to be filed where the person instituting the suit actually and voluntarily resided or carried on business or personally worked for gain. In other words, the 1958 Act, with which the Supreme Court was concerned, did not contain a provision similar to Section 134(2) of the present Trade Marks Act, with which we are 13 (2014) 16 PTC 452 (Del – DB) 14 (2015) 10 SCC 161 15 2022 SCC OnLine Del 2968 Signature Not Verified CS(COMM) 309/2021 Page 17 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 concerned. It was for this reason that, in para 26 of the report, the Supreme Court observed as under:

up by plaintiffs, was of trademark infringement and that, therefore, the High Court could not assume jurisdiction merely on the basis of Section 62(2) of the Copyright Act. The Supreme Court, therefore, examined the matter from the point of view of the CPC, specifically Section 20 thereof. As the defendant was not located within the territorial jurisdiction of the High Court of Calcutta, where the suit was instituted, clause (b) of Section 20 did not apply. The Supreme Court, therefore, concerned itself with clause (c) of Section 20, which dealt with cases in which the “cause of action, wholly or in part, arose” within the jurisdiction of the Court which the plaintiff had approached. 34.3 One of the contentions advanced by Dhodha House before the Supreme Court was that the application of the defendant for registration of the impugned trademark had been published in the Trade Marks Journal, which was circulated within the territorial jurisdiction of the High Court of Calcutta. In para 30 of the report, the Supreme Court held that “an advertisement by itself in the journal or a paper would not confer jurisdiction upon a court” and relied, for the said purpose, on a passage from its earlier decision in O.N.G.C. v. Signature Not Verified CS(COMM) 309/2021 Page 18 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 16 Utpal Kumar Basu . In para 31, the Supreme Court went on to clarify the position thus:

34.4 During the course of its discussion, the Supreme Court explained the concept of “carries on business”, in paras 46, 47 and 51 of the report, thus:

16 (1994) 4 SCC 711 Signature Not Verified CS(COMM) 309/2021 Page 19 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

Signature Not Verified CS(COMM) 309/2021 Page 20 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 alia at a place where it has a subordinate office. Only because, its goods are being sold at a place would thus evidently not mean that it carries a business at that place.” * 51. The plaintiff was not a resident of Delhi. It has not been able to establish that it carries on any business at Delhi. For our purpose, the question as to whether the defendant had been selling its produce in Delhi or not is wholly irrelevant ( sic ). It is possible that the goods manufactured by the plaintiff are available in the market of Delhi or they are sold in Delhi but that by itself would not mean that the plaintiff carries on any business in Delhi.” No part of the cause of action having arisen within the territorial jurisdiction of the High Court of Calcutta, the Supreme Court upheld the decision of the High Court of Calcutta, holding that the suit would not lie before it. 6 35. Banyan Tree 35.1 In this case, the plaintiff Banyan Tree Holding (P) Ltd (BTH) had its registered office at Singapore whereas the defendants (collectively referred to as “AMKR”) were located at Hyderabad. Defendant 1 was the promoter of the Defendant 2-Company. 35.2 BTH claimed to have been using the word mark ‘Banyan Tree’ in respect of its hospitality business since years, and that AMKR was starting a project named ‘Banyan Tree Retreat’, with a device similar to that used by the plaintiff. As BTH had no trademark registration in India, it sued AMKR for having sought to pass off its services as those of the plaintiff by using a deceptively similar mark and logo. Signature Not Verified CS(COMM) 309/2021 Page 21 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 35.3 BTH justifying invocation of the jurisdiction of this Court on the ground that (i) AMKR was soliciting business, through use of the impugned mark and device in Delhi, (ii) AMKR had a presence in Delhi through its website, which was accessible in Delhi, and (iii) the website was not passive, but provided contact information and also sought feedback and inputs from its customers through an interactive webpage. The ubiquity, universality and utility of the features of the Internet and the World Wide Web, it was submitted, conferred jurisdiction on this Court to entertain the dispute. 35.4 The learned Single Judge, before whom the matter came up, felt that the issue required clarification by a Division Bench. The Division Bench framed the questions that arose for consideration, before it, thus:

Signature Not Verified CS(COMM) 309/2021 Page 22 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

17 Casio India Co Ltd v. Ashita Tele Systems Pvt Ltd, 2003 (27) PTC 265 (Del) Signature Not Verified CS(COMM) 309/2021 Page 23 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

18 2007 (35) PTC 177 (Del) Signature Not Verified CS(COMM) 309/2021 Page 24 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

(iii) It would have, additionally, to be 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. (iv) The website must, therefore, not only be interactive, but must permit commercial transactions to be concluded by the defendant with a user of the website. Signature Not Verified CS(COMM) 309/2021 Page 25 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (v) Mere interactivity of the website which is accessible in the forum state would not confer jurisdiction.

(x) The “effects” test would, therefore, 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. The “sliding scale” test was devised in Zippo Signature Not Verified CS(COMM) 309/2021 Page 26 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

19 952 F. Supp. 1119 (W.D. Pa. 1997) 20 326 US 340 (1945) Signature Not Verified CS(COMM) 309/2021 Page 27 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

21 130 F.3d 414 (1997) 22 F.3d 446 (2003) Signature Not Verified CS(COMM) 309/2021 Page 28 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (iii) A mere hosting of a website which can be accessible by anyone from within the jurisdiction of the court is not sufficient for this purpose. (iv) Also, a mere posting of an advertisement by the defendant depicting its mark on a passive website which does not enable the defendant to enter into any commercial transaction with user in the forum state cannot satisfy the requirement of giving rise to a course of action in the forum state. (v) Even an interactive website, which is not shown to be specifically targeted at users in the forum state for commercial transactions, will not result in the court in the forum state having jurisdiction. (vi) For the purposes of Section 20(c) of the 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 was specifically targeted at users in the forum state for commercial transactions. (vii) 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 the user of its website within the forum state. Signature Not Verified CS(COMM) 309/2021 Page 29 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (viii) Additionally, the plaintiff would have to show that the specific targeting of the forum state by the defendant resulted in injury or harm to the plaintiff within the forum state.

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36.3 WWE contended, before this Court, that it “carries on business” in Delhi because “its programs are broadcast in Delhi; its merchandise and books are available for sale in Delhi; and its goods and services are sold to customers in Delhi through its website which can be accessed in Delhi over the Internet”. The Division Bench identified Signature Not Verified CS(COMM) 309/2021 Page 33 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 the issue arising before it to be whether, in these circumstances, WWE could be treated as “carrying on business” within the territorial jurisdiction of this Court.

23 ( 2008) 37 PTC 269 Signature Not Verified CS(COMM) 309/2021 Page 34 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 16. Faced with this eventuality, Mr. Anand submitted that, in fact, there is no need to have any office at all at a particular place for establishing the fact that a person carries on business at that 23 place. He placed reliance, once again, on Wipro Limited ( supra ), wherein it was observed that the plain meaning of the expression “carries on business” only conveys that wherever there is a business activity - be it the principal place or branch or branches - the party concerned is said to carry on business at such places. In fact, we may point out that Mr. Anand need not haved laboured on 10 this point at all because in Dhodha House ( supra ) itself, the Supreme Court had clearly observed that for the purpose of carrying on business, the presence of the person concerned at a particular place was not at all necessary and that such business could be carried on at that place through an agent or a manager or through a servant. Mr. Anand also submitted that while considering the question of territorial jurisdiction at the threshold stage and particularly while considering the question of return of a plaint under Order 7 Rule 10 CPC, only the averments made in the plaint ought to be seen and, if, on a demurrer, a case for territorial jurisdiction has been made out, the plaint ought not to be returned. In our view, there is no quarrel with this proposition either. 17. The main issue before us is one of considering as to whether on the basis of the averments made in the plaint, the appellant/plaintiff carries on business in Delhi. It is nowhere pleaded in the plaint that the appellant/plaintiff, has an agent or a manager or a servant, through whom the appellant/plaintiff carries on business in Delhi. As pointed out above, it is also not the appellant/plaintiff's case that it has an office in Delhi. The question then arises as to whether the third condition specified in Dhodha 10 House ( supra ) is satisfied or not. If we recall, in Dhodha 10 House ( supra ), the Supreme Court had observed that the expression ‘carries on business”, as appearing in the above two provisions, is much wider than what the expression in normal parlance connotes because of the ambit of a civil action within the meaning of Section 9 of the CPC. The Supreme Court, however, cautioned that although the expression has a very wide meaning, it is necessary that the three conditions specified in the said decision should be satisfied. 18. Insofar as the first two conditions are concerned, they relate to agents. Inasmuch as it is an admitted position that the appellant/plaintiff has no agent in Delhi, those two conditions are clearly not fulfilled. However, it is the appellant/plaintiff's case that it carries on business in Delhi directly inasmuch as its goods and services are sold to consumers in Delhi through its website which is accessed in Delhi. It is on this basis that the learned counsel for the appellant/plaintiff submitted that the decision in Dhodha 10 House ( supra ) as also in Archie Comic Publications, Inc. v. 24 Purple Creations Pvt. Ltd. (supra) would really not be applicable

Signature Not Verified CS(COMM) 309/2021 Page 35 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 in the present case as in those decisions web-based business models, which have been referred to as the ‘new media’, were not considered. The question which then arises is whether the introduction and spread of e-commerce and business over the internet impacts the meaning of the expression ‘carries on business’ at a certain place. The learned Single Judge, as we have pointed out above, felt that the introduction of the new business models of doing business over the internet was not any different from the old model of doing business over the telephone or fax. He had placed reliance on the Supreme Court decision in the case of Bhagwan Goverdhandas Kedia v. Girdharilal Parshottamdas & 25 Co. ( supra ). 10 19. Considering the fact that in Dhodha House ( supra ), the third condition stipulated that to constitute ‘carrying on business’ at a certain place, the essential part of the business must take place there, it would be necessary to examine this aspect in the backdrop of business over the internet. When a transaction takes place over the internet, where is the contract concluded? This is the question which needs to be answered. In other words, at which place does the essential part of the business transaction take place? The example of the Bombay firm having a branch office at Amritsar, where orders were received, subject to confirmation by the head office at Bombay and where money was paid and disbursed, needs to be examined in the context of internet transactions. In that example, it was noted that the Bombay firm could be said to be carrying on business at Amritsar and was liable to be sued at Amritsar. In the present case, the plaintiff/appellant is incorporated in USA. It has a website. We do not know as to where that website is hosted. The server would, in all likelihood, be in USA. It has not been pleaded that the website of the appellant/plaintiff is hosted on a server in Delhi. Therefore, it can be safely presumed that the web server is not located in Delhi. However, if a customer in Delhi wishes to purchase an article, which is available on the website of the appellant/plaintiff, the purchaser in Delhi accesses the said website on his or her computer in Delhi. The said purchaser places the order for the said article from his computer in Delhi. The payment is made either through a credit/debit card or through a cash card from Delhi and ultimately the goods are delivered to the customer in Delhi. In the nature of such transactions, the question arises as to which is the place where the essential part of the business occurs? * 21. From the above, it is clear that the general rule is that the contract is complete when the offeror receives intimation that the offeree has accepted his offer. An exception to this has been carved out in respect of contracts negotiated by postal communications or telegrams. The exception being that the bargain in such cases (post 25 AIR 1966 SC 543 Signature Not Verified CS(COMM) 309/2021 Page 36 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 or telegram) would be struck and the contract would be complete when the acceptance of the offeree is put into a course of transmission by him by posting a letter or despatching a telegram. The Supreme Court then held as under : - “10. It is true that the Post and Telegraphs Department has general control over communication by telephone and especially long distance telephone, but that is not a ground for assuming that the analogy of a contract made by post will govern this mode of making contracts. In the case of correspondence by post or telegraphic communication, a third agency intervenes and without the effective intervention of that third agency, Letters or messages cannot be transmitted. In the case of a conversation by telephone, once a connection is established there is in the normal course no further intervention of another agency. Parties holding conversation on the telephone are unable to see each other : They are also physically separated in space, but they are in the hearing of each other by the aid of a mechanical contrivance which makes the voice of one heard by the other instantaneously, and communication does not depend upon an external agency.” (underlining added) It is obvious that the Supreme Court distinguished the case of a contract negotiated over the telephone from that of contracts through letters or through telegrams. Whereas in the latter, there was an intervention of an external agency, which took time to deliver the acceptance of the offer by the offeree to the offeror, in the former, the communication of the acceptance was instantaneous once the communication link had been established. The Supreme Court, by virtue of its majority decision, went on to hold as under: - “14. Obviously the draftsman of the Indian Contract Act did not envisage use of the telephone as a means of personal conversation between parties separated in space, and could not have intended to make any rule in that behalf. The question then is whether the ordinary rule which regards a contract as completed only when acceptance is intimated should apply, or whether the exception engrafted upon the rule in respect of offers and acceptances by post and by telegrams is to be accepted. If regard be had to the essential nature of conversation by telephone, it would be reasonable to hold that the parties being in a sense in the presence of each other, and negotiations are concluded by instantaneous communication of speech, communication of acceptance is a necessary part of the formation of contract, and the exception to the rule imposed on grounds of commercial expediency is inapplicable.” (underlining added) Signature Not Verified CS(COMM) 309/2021 Page 37 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

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(iii) For “carrying on business”, the following conditions are required to be satisfied: (a) Where the business is carried on through an agent, (i) the agent must be a special agent who attends exclusively to the business of the principal Signature Not Verified CS(COMM) 309/2021 Page 39 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 and carries it on in the name of the principal and not a general agent who does business for anyone that pays him, and (ii) the agent must be an agent in the strict sense of the term. (b) The essential part of the business must take place in that place. (iv) A corporation would be deemed to be carrying on business inter alia at a place where it has a subordinate office. The mere fact that its goods are sold at a place would evidently not mean that it carries on the business at that place. 36.6 In the case before it, it was not pleaded by WWE, in its plaint – which alone could be seen while adjudicating on the issue of territorial jurisdiction under Order VII Rule 10 – that it had an agent or manager or servant, through whom it carried on business in Delhi or that it had an office in Delhi. 36.7 WWE’s plea of territorial jurisdiction being based on its website, the Division Bench identified the question that arose as being “whether the introduction and spread of the e-commerce and business over the Internet impacts the meaning of the expression ‘carries on business’ at a certain place”. 36.8 It could not be disputed that, if a customer in Delhi wanted to purchase an article available on the website of WWE, he would access the website on his, or her, computer in Delhi, place an order for the Signature Not Verified CS(COMM) 309/2021 Page 40 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

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Signature Not Verified CS(COMM) 309/2021 Page 45 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 arisen at the place where the plaintiff had its principal office. Where, therefore, the cause of action had arisen is a place where the plaintiff had its principal office, Section 134(2) ousted the jurisdiction of the situs of the subordinate office of the plaintiff, even if the plaintiff was carrying on business or personally working for gain at such place. Para 21 of the report went on to clarify that the removal, by Section 134(2), of the necessity to sue the defendant where the defendant was residing or carrying on business, which was otherwise imperative under Section 20 of the CPC, was subject to these caveats. The principle that “in case the plaintiff resides or has its principal place of business/carries on business or personally works for gain at a place where cause of action has also arisen, suit should be filed at that place not at other places where the plaintiff is having branch offices, etc.”, 14 which stands repeated four times in the decision in IPRS was, therefore, treated by the Supreme Court as a conditional caveat for entitlement, by a plaintiff, to the benefit of the non obstante clause with which Section 134 starts. 37.8 Interestingly, however, the Supreme Court did not clarify the position which would obtain where the cause of action arose entirely at the place where the plaintiff had a subordinate office, and no part of the cause of action arose where the plaintiff had its principal or main office. That aspect was, however, as it would become apparent presently, clarified by the Division Bench of this Court in Ultra Home 11 Construction . 37.9 In the penultimate para 52 of the decision, the Supreme Court once again reiterates that Section 134 of the Trade Marks Act had to be interpreted in a purposive manner. Though the provision entitles Signature Not Verified CS(COMM) 309/2021 Page 46 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 the plaintiff, suing for infringement of a trademark, to institute the suit where he resides, carries on business, or personally works for gain, without having to travel to the place where the defendant resides or where the cause of action arises wholly or in part, nonetheless, “if the plaintiff is residing or carrying on business, etc. at a place where the cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above”. 11 38. Ultra Home Construction 38.1 The appellant Ultra Home Construction (UHC) sued the defendants, alleging infringement of UHC’s registered trademark AMRAPALI, used by the appellant in housing construction projects. UHC had its principal place of business at Delhi. In para-52 of the plaint, UHC justified invocation of the jurisdiction of this Court on the ground that it operated in Delhi through its registered office and through several executive agents. It was also averred that there was voluminous sale and advertisement of the plaintiff within the jurisdiction of this Court. The learned single Judge of this Court, before whom the suit came up for consideration held, following 14 IPRS , that the defendants were infringing UHC’s trademark in Jharkhand and that, as UHC had a hotel in Jharkhand, UHC would have to sue the defendant at Jharkhand, and not in this Court. 38.2 This Court first examined the matter from the point of view of Section 20 of the CPC. The Division Bench first relied on the 26 decisions in Patel Roadways Ltd v. Prasad Trading Co. and New 26 (1991) 4 SCC 270 Signature Not Verified CS(COMM) 309/2021 Page 47 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

27 (2004) 4 SCC 677 Signature Not Verified CS(COMM) 309/2021 Page 48 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

11 decidendi of Ultra Home Construction . 39. Tata Sons 39.1 The plaintiff Tata Sons (“Tata”, hereinafter) sued the defendants for having used TATA, which was the registered trademark of the plaintiff, in a manner which infringed the said mark. Infringement, it was alleged, took place because of the use, by the defendants, of “Tata” as part of its domain names www.tatabonus.com and www.hakunamatata.finance through which they conducted online trading in crypto currency. Though the defendants were registered in Signature Not Verified CS(COMM) 309/2021 Page 49 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 the UK and the US, the plaint asserted that the suit was maintainable before this Court, as the websites www.tatabonus.com and www.hakunamatata.finance were accessible in India and were, in fact, accessed by visitors in Delhi on a daily basis. 39.2 I held, as the Single Judge who dealt with Tata’s application under Order XXXIX Rules 1 and 2 of the CPC, seeking interlocutory injunction against the defendants, that this Court did not have territorial jurisdiction to deal with the matter. Tata appealed, against my decision, to the Division Bench, which allowed the appeal and held that the suit was maintainable before this Court. 39.3 The Division Bench held, in para 16 of its decision, that 6 Banyan Tree had settled the law with respect to territorial jurisdiction in the case of online trade via Internet websites. After 6 reproducing para 48 of Banyan Tree , which encapsulated the findings in that decision, the Division Bench went on to hold that “targeting” “would include the ability of the customers to undertake a commercial transaction on a website within the particular geography”. The Division Bench also impliedly approved the decisions of the learned Single Edges of this Court in Burger King Corporation v. 28 Techchand Shewakramani and Millennium & Copthorne 29 International Ltd v. Aryans Plaza Services (P) Ltd , which held that a Court having territorial jurisdiction over any place where the website of the defendant could be accessed would be competent to try the suit, even if only promotional activities were undertaken on the website. 28 2018 SCC OnLine Del 10881 29 2018 SCC OnLine Del 8260 Signature Not Verified CS(COMM) 309/2021 Page 50 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862

30 2022 EWCA Civ 552 Signature Not Verified CS(COMM) 309/2021 Page 51 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 40.2 Let us first see what the Supreme Court says. 10 40.3 Dhodha House concerned itself essentially with Section 20 of the CPC. Section 20 confers jurisdiction both on the Court within whose jurisdiction the defendant, inter alia , carries on business, as well as on the Court within whose jurisdiction the cause of action, wholly or in part, arises. The Supreme Court examined both these aspects. For a person to be “carrying on business” at a particular place, it was not necessary, held the Supreme Court, for the person to be present at that place. “Carrying on business” implied “having any interest in a business at that place, voicing what is done, share in the gain or loss and some control over the business”. Business could, therefore, be carried on at a place either in person or through an agent. The Supreme Court, however, clarified that, where business was carried on through an agent, the agent had to be a Special Agent who attended exclusively to the business of the said person, and not a general agent who acted for anyone who paid him. Additionally, it was clarified that the agent had to be an agent stricto sensu. Further, clarified the Supreme Court, a business could be said to be carried on at a particular place only if the essential part of the business took place at that place. No part of the cause of action having arisen within the jurisdiction of the High Court of Calcutta, and, as the defendant could not be said to be carrying on business within the jurisdiction of the said High Court, the Supreme Court held that the suit, which had been instituted by Dhodha House before the High Court of Calcutta, was not maintainable for want of territorial jurisdiction. 14 40.4 IPRS held that Sections 134 of the Trade Marks Act and 62 of the Copyright Act provided additional fora before whom a challenge Signature Not Verified CS(COMM) 309/2021 Page 52 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 on the ground of infringement could be laid by a plaintiff, over and above the fora which could be approached under Section 20 of the 14 CPC. Apropos Section 20, IPRS held that (i) under Section 20 of the CPC, (a) ordinarily, a defendant was required to be sued where its principal office of business was situate; (b) however, if the cause of action had arisen entirely within the place where the subordinate office of the defendant was situate, and no part of the cause of action had arisen where the defendant had its principal office, the defendant could be sued where it had its subordinate office, and could not insist that the suit be instituted at the place where its principal office was located, and, (ii) under Section 134(2) of the Trade Marks Act, (a) a plaintiff is entitled to sue the defendant for infringement where the plaintiff resides, or carries on business, or personally works for gain, even if no part of the cause of action has arisen at such place; (b) however, if the cause of action has arisen at the place where the plaintiff as its principal place of business, the plaintiff has necessarily to sue the defendant at that place, and cannot sue the defendant at some other distant spot on the ground that the plaintiff as a subordinate office at such other location. 40.5 To advert, now, to the principles emanating from the decisions of Division Bench of this Court. Signature Not Verified CS(COMM) 309/2021 Page 53 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 6 40.6 Banyan Tree directly addressed the issue of whether a suit for infringement or passing off could be filed before a court within whose jurisdiction the plaintiff did not carry on business, on the ground that the defendant had hosted a universally accessible website. Though, in para 8 of the decision, the Division Bench observed that it was not examining the matter from the point of view of Section 134(2) of the Trade Marks Act, as it was not dealing with an infringement suit, the subsequent principles, as laid down by the Division Bench have expressly been made applicable both to infringement and passing off 6 cases. On the issue of whether Banyan Tree applies in infringement cases, Division Benches of this Court have differed. While the 13 decisions in World Wrestling Entertainment and Ultra Home 11 6 Construction hold the decision in Banyan Tree not to be applicable because it considered only Section 20 of the CPC, and not Section 134(2) of the Trade Marks Act, as also because it was a case of passing off, and not of infringement, the subsequent Division Bench 15 6 in Tata Sons has expressly held Banyan Tree to be applicable in 6 infringement cases as well. Banyan Tree , for its part, clearly states that the principles laid down would apply both in cases of infringement and passing off. For the present, therefore, I have to 6 treat the decision in Banyan Tree as applicable both to infringement as well as passing off cases. 6 40.7 The Division Bench in Banyan Tree held that mere accessibility of a website in Delhi would not ipso facto clothe this Court with jurisdiction to entertain a passing off suit. Jurisdiction could not be vested by a passive website, which had no intention to specifically target audiences outside the State where the website was hosted. It was further held that, for the purposes of an action for Signature Not Verified CS(COMM) 309/2021 Page 54 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 passing off or for infringement, where the plaintiff does not carry on business within the jurisdiction of the forum court – i.e., the court whose jurisdiction was sought to be invoked – and where there was no long arm statute, the onus would be on the plaintiff to establish purposeful availment, by the defendant, of the jurisdiction of the forum court. Such purposeful availment could not be demonstrated merely by the defendant’s website being interactive. Additionally, it would have to be shown that the nature of the activity carried on by the defendant using its website was with the intention to conclude a commercial transaction with the website user. “Purposeful availment”, it was held, necessarily required the plaintiff to establish that, firstly, the website of the defendant was interactive and, secondly, that the website permitted commercial transactions to be concluded with a user. Importantly, the Division Bench further clarified that the jurisdiction of the forum court would not be attracted merely because the defendant’s website was interactive and was accessible in the forum state. The Court held that, before arriving at a decision regarding the competence of the forum court to adjudicate on the lis, the Court would have to examine (i) the degree of interactivity, (ii) the nature of the activity permissible and (iii) whether it results in a commercial transaction. Further, it would have to be shown that (i) the defendant specifically targeted the plaintiff, or other customers, within the forum state and that (ii) such specific targeting resulted in injury or harm to the plaintiff within the forum state. Viewers of the defendant’s website in the forum state were required to have to be shown to be specifically targeted. 13 40.8 World Wrestling Entertainment dealt with the situs of the plaintiff, vis-à-vis Section 134(2) of the Trade Marks Act. Banyan Signature Not Verified CS(COMM) 309/2021 Page 55 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 6 Tree was discounted as being inapplicable because (i) it pertained to the defendant’s website, (ii) it was admitted, in that case, that the plaintiff did not carry out business within the jurisdiction of the forum Court, (iii) it was concerned only with Section 20(c) of the CPC and 6 (iv) it was a case of passing off. Banyan Tree , it was observed, dealt with the concept of “cause of action” and not “carrying on business”, which was the issue in controversy in World Wrestling 13 Entertainment . The Division Bench, in World Wrestling 13 Entertainment , held that, though the presence of a person at a particular place was not necessary for the person to be treated as carrying on business at that place, if such business was carried out through an agent, that agent had to be a Special Agent and an agent in the real sense of the word, and not merely a commission agent who acted for anyone for a commission. On the facts of the case, however, the Division Bench held that, as WWE hosted a website over which it was possible to conclude a commercial transaction by purchasing an article by placing an order and making payment through a credit/debit card from Delhi, where the goods would be ultimately delivered to the customer, this Court would have jurisdiction to entertain the suit, as, at least to that extent, WWE was carrying on business at Delhi. With the advent of e-commerce, noted the Division Bench, an entity could have a virtual presence in one place and a physical presence at a distance therefro. Significantly, the Division Bench held that the capability to transact across the net at a particular place was equivalent to a seller having a sales outlet at that place. Applying this analogy, it was held that WWE could be treated as having a virtual sales outlet at Delhi and, therefore, to be carrying on business at Delhi for the purposes of Section 134(2) of the Trade Marks Act. 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(iii) Similarly, if the plaintiff has a principal office and a subordinate office at two places, and the cause of action arises whether the subordinate office is located, the plaintiff has to sue the defendant at that place, and nowhere else. The location of the principal office becomes irrelevant. Signature Not Verified CS(COMM) 309/2021 Page 57 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (iv) If, however, in such a situation, the cause of action has arisen at a third place, where the plaintiff has no office, the suit would have to be instituted where the plaintiff has its principal office. (v) In fact, situations (ii), (iii) and (iv) can be conflated, to make matters simpler. They all deal with a situation in which the plaintiff has a principal office at one place and a subordinate office at another. In such a situation, (a) if the cause of action has arisen at one of the two places, the plaintiff would have to institute the suit at that place, and nowhere else, and (b) if the cause of action has arisen at a third place, the plaintiff would have to institute the suit where its principal office is located. 15 41. Tata Sons 13 41.1 Unlike World Wrestling Entertainment and Ultra Home 11 15 6 Constructions , Tata Sons held Banyan Tree to continue to be good law even in infringement cases. The Division Bench in Tata 15 Sons , however, approved the decision of the UK Court of Appeal in 30 Lifestyle Equities and held that targeting of customers within the jurisdiction of the forum court was not required to be aggressive and the “looming presence” of a website in a geography and ability of customers therein to access the website is sufficient, in a given case. 42. Application of the aforesaid principles to the facts of the present case Signature Not Verified CS(COMM) 309/2021 Page 58 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 42.1 The issue of jurisdiction has distinctly to be examined vis-à-vis Section 20 of the CPC and vis-à-vis Section 134(2) of the Trade Marks Act. Each is an alternative to the other, and, if either applies, the invocation of the jurisdiction of this court would be justified. 42.2 Section 20, CPC 42.2.1 The location of the plaintiff is wholly irrelevant under Section 20 of the CPC. The defendant strides the provision. To the extent it is relevant for us, a suit may be instituted, under Section 20, either where the defendant carries on business ( vide clause (b)or where the cause of action arises, wholly or in part ( vide clause (c). 42.2.2 I propose, first, to examine the matter from the point of view of clause (c), i.e., whether any part of the cause of action can be said to have arisen within the jurisdiction of this Court. 6 42.2.3 The common thread that runs through Banyan Tree , 13 14 World Wrestling Entertainment and Tata Sons is that mere accessibility of a website within the jurisdiction of a particular court would not clothe that court, ipso facto , with the competence to adjudicate on infringement, unless the website was one across which a commercial transaction could be concluded. 42.2.4 The capability of concluding a commercial transaction across the website – even if such a transaction is not actually concluded – appears, therefore, to be the sine qua non for a court to have jurisdiction to entertain the infringement suit. In other words, where a website is alleged to be infringing either because of the name Signature Not Verified CS(COMM) 309/2021 Page 59 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 of the website itself, or because of content available on the website, a plaintiff would be entitled to sue the host of the website before any court within whose jurisdiction a commercial transaction could be concluded across the website. It is only in such a circumstance that part of the cause of action, for the purposes of Section 20(c) of the CPC, can be said to have arisen within the jurisdiction of such court. 42.2.5 An important caveat is required, however, to be inserted here. Sub-sections (6) and (7) of Section 29 include, within the scope of “use” of a registered trade mark, its use on business papers or in advertising. As such, even the use of an infringing logo, by the defendant, on business papers, or advertising, by the defendant, of its services within the jurisdiction of this Court, would constitute “use”. There is, however, no such averment in the present plaint; ergo, this aspect of the matter need not detain us. 42.2.6 Mere interactivity, without the possibility of concluding a commercial transaction across a website, cannot constitute part of the cause of action, so as to enable a plaintiff to sue the host of the website wherever the website can be accessed. The interactivity must partake of the nature of ability to conclude a commercial transaction. It is only then that it can be said that the host of the website had purposefully targeted customers within the jurisdiction of a court, so as to render that court jurisdictionally capable of entertaining an infringement suit against the host of the website. 42.2.7 There is no material, whatsoever, on record in the plaint, to indicate that any commercial transaction could be concluded across the defendant’s website within the jurisdiction of this Court. On this Signature Not Verified CS(COMM) 309/2021 Page 60 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 aspect of the matter, relatable to Section 20 of the CPC, the only case that the plaintiff has made out, in the plaint, is that the defendant’s website can be accessed within the jurisdiction of this Court. 42.2.8 The plaint does not aver, at any point, that the defendant’s website is interactive. To reiterate, all that it asserts is that the defendant’s website can be accessed within the jurisdiction of this Court. Though the plaint does state that the defendant “carries on business” within the jurisdiction of this Court, a holistic reading of the plaint reveals that this assertion is founded only on the premise that the defendant’s website can be accessed by persons in Delhi. 42.2.9 Mere ability to access a website has not been treated, by any binding authority either of the Supreme Court or of any Division Bench of this Court, to be sufficient to clothe this Court with the jurisdiction in the matter under Section 20 of the CPC. It would be stretching the law beyond breaking point to hold that, merely by hosting a website, which provides for no interactivity with any user, commercial or otherwise, the host has rendered itself vulnerable to being sued for infringement before every court in this country. Nor, for that matter, does the law say so. 42.2.10 Mere accessibility of a website does not amount to arising of a part of cause of action, applying the law laid down in the decisions already cited in this regard. “Purposeful availment” is the test, and such purposeful availment can be said to exist either where the website is advertised, either itself or on any other platform, or where a user can interact with the website, howsoever minimal the extent of such interaction may be. The plaint does not, however, Signature Not Verified CS(COMM) 309/2021 Page 61 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 purport to say that a user can interact with the defendant’s website within the jurisdiction of this Court. 42.2.11 It is important to note, in this context that, as per the averments in the plaint, the only manner in which the news channel of the defendant can be viewed by users is by accessing the internet and logging on, either to the defendant’s website or to one of its social media pages. There is no further averment that any of these pages, or websites, permit user interactivity. Social media pages, it is well known, may or may not be user interactive. The Court cannot presume one way or the other, in the absence of the necessary averment in that regard. 42.2.12 No part of the cause of action can, therefore, be said to have arisen within the jurisdiction of this Court. Clause (c) of Section 20 of the CPC would not, therefore, apply. 42.2.13 Clause (b) of Section 20 would, however, apply. 42.2.14 Invocation of clause (b) would be justified only if the essential part of the business of the defendant is carried out within the territorial limits of the jurisdiction of this Court. The necessary averments, in this regard, must be present in the plaint. 42.2.15 Apropos the situs of the defendant’s business, the following recitals are to be found in the plaint: (i) The address of the defendant, as provided in the memo of parties accompanying the plaint, is at Kolkata. Signature Not Verified CS(COMM) 309/2021 Page 62 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 (ii) Para 17 acknowledges that the defendant “operates from their ( sic its) address at 89, M.B. Road, Birati, Kolkata 700051, West Bengal. (iii) The same paragraph avers that the defendant operates a website https://calcuttanews.tv/livetv.php. (iv) The defendant’s application for registration of the mark, was published in the Indian Trade Marks Journal. (That, however, would be irrelevant for jurisdiction, in view of 10 Dhodha House .) (v) The defendant provides news broadcasting services through its satellite TV Channel under the names CALCUTTA NEWS and CTVN-AKD-PLUS. (Para 20(i)) (vi) The defendant also operates through its website, Facebook page, Instagram page, Twitter account and YouTube channel, through which they carry on business. As these channels can be accessed by all consumers in Delhi, the defendant is, through these channels, specifically targeting Delhi consumers. (Para 20(ii)) (vii) The defendant is offering news services under the impugned logos within the territory of this Court. 42.2.16 Viewed thus, it is clear that the averments in the present plaint, as enumerated in para 42.2.15 supra , sufficiently assert that the Signature Not Verified CS(COMM) 309/2021 Page 63 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 defendant carries on business within the jurisdiction of this Court. The defendant is engaged in the business of dissemination of news, over its news channel. There is a specific assertion, in para 49(a) of the plaint, that the defendant carries on business within the territory of this Court through its website, social media pages and YouTube channels. How it does so, cannot be examined under Order VII Rule 10 of the CPC. Further, para 49 goes on to assert, in so many words, that the defendants are offering news services under the impugned logos within the territory of this Court . The business of the defendant being offering of news services, this assertion is a complete answer to the submission, of the defendant, that the suit is bad for want of territorial jurisdiction and has, therefore, to be returned under Order VII Rule 10. 42.2.17 The suit would, therefore, be maintainable before this Court under clause (b) of Section 20 of the CPC, though not under clause (c) thereof. 42.3 Section 134(2), Trade Marks Act 42.3.1 The plaintiff would also be entitled to institute the present suit before this Court under Section 134(2) of the Trade Marks Act. 42.3.2 Para 49(b) in the plaint reads thus: “The Plaintiff is carrying on business in Delhi. Its services through its website are offered in Delhi and are also aimed at viewers in Delhi. Moreover, the website of the Plaintiff is interactive in nature. They are directed to and can be accessed by consumers all over India and in Delhi.” Signature Not Verified CS(COMM) 309/2021 Page 64 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 42.3.3 The plaintiff is an all-India News Channel which is accessible throughout India and is seen by millions of households in Delhi. The commercial activity of the plaintiff is carried out through its news channel. It is a matter of common knowledge that news channels earn revenue based on viewership and that increasing viewership of channels is one of the primary methods by which revenue is earned. The court can also take judicial notice of the fact that, across the plaintiff’s channel, extensive advertisements also figure, including the advertisement of the plaintiff’s channel itself. The plaintiff’s channel is also advertised, independently, within the jurisdiction of this Court. 42.3.4 Besides, and in any event, the averments in para 49(b) of the plaint, taken on demurrer, are sufficient to constitute an averment that the plaintiff is carrying on business within the jurisdiction of this Court. The plaint specifically pleads that the plaintiff is carrying on business in Delhi, offering services through its website at Delhi, that the services are aimed at viewers in Delhi, that its website is directed to consumers all over India and in Delhi, and, most importantly, that the website is interactive in nature. Further, in para 8 of the plaint, it is asserted that the CNN channel has been available in India since 1989; that the New Delhi bureau of the plaintiff opened in 1992 , and that CNN International established a relationship with New Delhi Television Pvt Ltd, for news coverage to be shown on Doordarshan in June 1993 . 42.3.5 Viewed any which way, therefore, given the nature of the plaintiff’s activities, the plaintiff certainly carries on business within Signature Not Verified CS(COMM) 309/2021 Page 65 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 the jurisdiction of this Court, as understood in Section 134(2) of the Trade Marks Act. 43. The invocation, by the plaintiff, of the jurisdiction of this Court is sustainable under Section 134(2) of the Trade Marks Act as well as under clause (b) of Section 20 of the CPC. Conclusion 44. Accordingly, IA 9228/2021 preferred by the defendant under Order VII Rule 10 of the CPC, is dismissed. IA 7844/2021 [ Under Order XXXIX Rules 1 and 2, CPC ] 45. Adverting, now, to the aspect of infringement and passing off, a mere comparison of the marks of the plaintiff and of the defendant is sufficient for the court to arrive at a prima facie finding in this regard. 46. The plaintiff asserts the device mark . It is, quite clearly, ‘CNN’, as an acronym for ‘Cable News Network’, depicted in a peculiar stylized fashion. 47. The most prominent feature of the impugned marks of the defendant is, quite clearly, the central logo. Where part of the mark is thus prominent, the presence of added matter would not serve to mitigate the infringing act. The following passage from Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Signature Not Verified CS(COMM) 309/2021 Page 66 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 31 Laboratories tells us that, where the prominent part of the defendant’s mark is deceptively similar to that of the plaintiff, the fact that there may exist added matter would not undo, or even mitigate, the taint of infringement:

48. The manner in which the defendant has styled its logo, with the C and N joined at the base, each letter otherwise standing erect, is deceptively similar to – and, in fact, prima facie imitative of – the manner in which the plaintiff has styled its logo. True, the basal ‘link’ between C and N is more rounded in the defendant’s logo as compared to the plaintiff’s, but that slight difference is, prima facie , unlikely to impress itself on the psyche of the customer of average intelligence and imperfect recollection, who sees the marks at different points of time. The test of infringement, it is trite, is whether a customer of average intelligence and imperfect recollection, who sees the plaintiff’s mark at one point of time and, some time later, chances on the defendant’s mark, is, at an “initial interest” level, likely to wonder, even if only for an instant, whether he has seen the mark, or something like it or associated with it, earlier. The matter has to be viewed from the “initial interest” perspective. If, the 31 (1965) 1 SCR 737 Signature Not Verified CS(COMM) 309/2021 Page 67 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 defendant’s mark “initially interests” the customer of average intelligence and imperfect recollection, into wondering whether he has seen the mark, or an associated mark, earlier, the tort of infringement, ipso facto , stands committed. 49. Without intending to trivialize the discussion, the reaction of the average customer, which would, without anything further and by itself, suffice to indicate “likelihood of confusion” and, therefore, infringement, is probably best represented by the now popular “thinking face” emoticon 🤔. If the defendant’s mark galvanizes the plaintiff, who has, some time earlier, seen the plaintiff’s mark but is, unfortunately, possessed of a mere imperfect ability to recollect, into thought as to whether he has seen the mark, or something associated with it, earlier, the tort of infringement stands committed. Nothing more is needed. 50. The only real discernable difference between the two marks is that CNN has two ‘Ns’ whereas CN has only one ‘N’. Though this distinction is apparent on a glance at the two logos, there is every possibility of a viewer forming an impression, given the similarity of the logo and the fact that both entities are involved in providing identical service of dissemination of news over the television, that there is an association between the two. 51. Section 29(2)(b) of the Trade Marks Act envisages infringement as taking place where, owing to, or on account of, the similarity of the competing marks and identity or similarity of the goods or services in respect of which the marks are used, there is likelihood of confusion. The provision clarifies, further, that Signature Not Verified CS(COMM) 309/2021 Page 68 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 likelihood of confusion would also include the likelihood of an association being presumed between the two marks. 52. Given the similarity between the plaintiff and the defendant’s marks, the fact that both marks are used for similar services, and cater to the same segment of public, i.e. those viewing news channels, a prima facie case of infringement is made out. 53. The similarity between the stylization of the defendant’s and the plaintiff’s logos is also so stark that the court is also inclined, prima facie , to hold that the defendant has deliberately devised a logo which is similar to that of the plaintiff. 54. As such, a prima facie case of passing off also exists. 55. In the circumstances, following the law laid down by the Supreme Court in para 14 of Laxmikant V. Patel v. Chetanbhai 32 Shah and para 5 of Midas Hygiene Industries P. Ltd. v. Sudhir 33 Bhatia , a clear case for injuncting the defendant, pending disposal of the present suit, from using the impugned mark for providing news services or any other services which are allied to those provided by the plaintiff, is made out. Conclusion 56. Accordingly, pending disposal of the suit, the defendant, as well as others acting on its behalf, shall stand restrained from using 32 (2002) 3 SCC 65 33 (2004) 3 SCC 90 Signature Not Verified CS(COMM) 309/2021 Page 69 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09 Neutral Citation Number : 2023:DHC:2862 the impugned trademarks , , , or any other mark which is similar to the plaintiff’s CNN/ trademarks, in relation to broadcasting news or allied services . The defendant shall remove the impugned marks from all physical and online/virtual sites forthwith. 57. IA 7844/2021 stands allowed accordingly. C. HARI SHANKAR, J. APRIL 28, 2023 dsn Signature Not Verified CS(COMM) 309/2021 Page 70 of 70 Digitally Signed By:SUNIL SINGH NEGI Signing Date:28.04.2023 18:37:09