The Situs: The ever-expanding territorial jurisdiction of internet infringements

In the year 2022, Kohinoor Seed [‘Kohinoor’] filed a trademark infringement and passing off suit against one of its distributors, Veda Seed [‘Veda,’ or ‘the distributor’]. It alleged that, after intimation of conclusion of their arrangement spanning over eight years, the distributor sought to sell seeds of third parties under Kohinoor's registered and unregistered trademarks. The assertions and the evidence presented by Kohinoor looked like a smoking-gun case with all the bells and whistles for a court to grant an interim injunction. Except for one hitch. The case was filed in the High Court of Delhi. 

Kohinoor set up the case neatly. It had its registered office in New Delhi. The trademarks were registered with the Trade Marks Registry in Delhi. The agreement with the distributor was executed in Delhi. The seeds were also sold online, and it placed evidence of availability of seeds on popular e-commerce websites that were accessible in Delhi. Yet, the Single Judge remained unconvinced and returned the plaint to Kohinoor to file the case before an appropriate court.

An action for trademark infringement can be brought before any Court where the defendant resides or carries on business, or where the cause of action [wholly or partly] arises. If the trademark is registered, additionally, the Court where the plaintiff resides, carries on business or personally works for gain also becomes eligible to try the suit. Kohinoor claimed eligibility on all legs — it resided in New Delhi through its registered office; the cause of action arose through the execution of the agreement and the registration of the trademark in New Delhi; and finally, the defendant was ‘carrying on business’ in New Delhi through the internet, via e-commerce websites accessible in New Delhi. The Single Judge remained unconvinced.

In a succinct judgment, the Single Judge concluded that Kohinoor conducted its seeds business from its office in Hyderabad and not New Delhi; that the cause of action, being unauthorised use of the trademark, would not cover mere registration or execution of an agreement in New Delhi; that the markets for the seeds were in the States of Madhya Pradesh, Gujarat, Maharashtra, Andhra Pradesh, Telangana, Karnataka and Tamil Nadu, and not New Delhi; and that the distributor neither targeted any customers in New Delhi, either offline or online, nor had licences as required under the Seeds (Control) Order for sale in New Delhi. Importantly, the Single Judge concluded that mere availability of seeds on e-commerce websites was not sufficient to hold that the distributor carried on business in New Delhi. 

Disappointed, Kohinoor appealed. This time the Division Bench agreed with Kohinoor and allowed its appeal on all counts. The most significant of these, of course, related to the Court's jurisdiction relating to e-commerce transactions. In a sweeping judgment, the appellate court held that mere accessibility of an e-commerce website having the distributor's goods was enough. It was irrelevant whether the goods were actually sold in New Delhi, or whether the offer to sell the goods was made by third parties. And with this, the territorial jurisdiction of the Delhi High Court expanded worldwide.

Origin Story

The history of territorial jurisdiction [and civil procedure] is both fascinating and illuminating. England did not possess a single ‘Civil Procedure Code.’ For most of the 19th century, English civil procedure remained a patchwork, with different forums catering to different forms of action with their own procedures. A plaintiff's right to sue was intrinsically bound to the particular action or writ [trespass, debt, covenant, etc.]. What the English practices differentiated were local actions and transitory actions. Local actions concerned with title or possession of land had to be brought in the county where the land was located. Transitory actions were rooted in personal claims in contract or tort and could be brought where the defendant resided [‘actor sequitur forum rei’]. The distinction between local and transitory has permeated much of the common lawyer's psyche, and we find remnants of this in our civil procedure [sections 16 to 19 of our Civil Procedure Code], in areas such as private international law and conflict of laws.

The British struggled with laws in India from the beginning. With a large population of diverse religions, languages, cultures and beliefs, there were no unified laws or systems to rely upon. The justice delivery system in India was even more complicated. For instance, in Bengal, as many as nine different systems of procedure existed for actions, making it impossible to predict with any certainty the outcome of substantive issues. Quickly, the British realised that an institutional, precedent-based development of law or procedures [the likes of which were developing in England] was not possible in India. This led to a century of development of unified laws for India through four law commissions, which still form the foundation of our laws today.

Code within the Code: Territorial Jurisdiction

One of the cornerstones of the Code was making clear rules for jurisdiction and venue for bringing actions. The place of suing [in descending order of specificity] is contained in sections 15 to 20 of the Code. Section 15 requires every suit to be instituted in the court of the lowest grade competent to try it. Sections 16 to 18 cover suits relating to immovable property and embody the age-old concept of local and transitory actions of England. Section 19 governs suits for wrongs to the person or movable property. Finally, section 20 — the residuary section — governs all other suits.

Section 20 gives the plaintiff two independent grounds of jurisdiction. The first is where the defendant resides or carries on business. This preserves the old English principle that the plaintiff must follow the defendant to a place where the defendant genuinely resides or carries on business. The logic underlying this principle is that it becomes practically impossible for a defendant to mount a practical defence in locations where it has no real presence. The Explanation [and its interpretation by the Apex Court] further cements this principle by limiting the jurisdiction ordinarily to the place of principle office of a defendant, but to the location where a subordinate office of a defendant exists if the cause of action arises in such location. This is achieved by deeming the defendant to be carrying on business from such subordinate office even when it has another principal office in India.

The other leg of section 20 provides for an alternative on the basis of ‘cause of action.’ This is akin to the situs of infringement or breach and is wide enough to confer jurisdiction even if part of the cause of action occurs in the location. In intellectual property cases, the infringing acts cover sale, offer for sale, copying, use, affixing, manufacture or import. Any location in India having any fragment of such infringing acts would allow the plaintiff to avail itself of the jurisdiction of the court over such location.

The Internet Era

The advent of the internet and e-commerce, however, hugely disrupted the application of section 20 in IP matters. The constant tussle between doing justice in cases of clear infringements and retaining some restraint on forum shopping has marked the internet era. The internet, with all its benefits, has spawned new levels of piracy, spurious goods and brand violations the likes of which the world has never experienced previously. The internet has brought the shop to our homes, which means more businesses sell products to us in our living room from across our country and the world. At the same time, small and genuine businesses wanting to sell on the internet are now exposed to actions in far-flung courts. The development of law over the last 20 years reflects this seesaw effect spawned by the internet.

The growth of internet business, married with the dynamic High Court of Delhi having a strong IP bar, led to a spurt of matters filed in the capital. Quick listing and decisive judges who were not scared to innovate meant more plaintiffs wanted to file in Delhi. Without either the plaintiffs or the defendants having offices in Delhi, the question that arose was whether a ‘virtual’ shop was enough to establish jurisdiction.

Dhodha House and Sweetmeats

The Supreme Court's decision in the case of Dhodha House in the year 2006, is not a case dealing with internet jurisdiction [‘internet case’]. But the genesis of internet jurisdiction starts here [ironically, in a case involving sale of sweetmeats in Faridkot]. The question that came up was whether the defendant carried on business in Ghaziabad, where the suit was filed. This led to the Court laying down the test for what constitutes ‘carries on business’ under Section 20.

The Court first explained that for carrying on business, a person's physical presence is not necessary. All that was required was having an interest in the business, a voice in what is done, a share in the gain or loss and some control. The Court then crystallised this concept by laying down three conditions that are necessary if a person is not present at a location — (a) business is carried on through a special agent who attends the person's business exclusively, (b) the agent must be an ‘agent’ in the strict legal sense, and (c) an essential part of the business must take place at the location [for example, carrying out of some sales]. The Court rejected the plaintiff's claim for jurisdiction, but the decision inadvertently led to the growth of internet jurisdiction.

Two Lines After Dhodha

Two lines of cases emerged post-Dhodha House in the context of IP cases. One line led to an expansion of the jurisdiction of courts. The other line was more restrictive. And they are now at odds with each other. The direction from here will set the course for the future of internet cases.

Banyan Tree and World Wrestling Entertainment [‘WWE’] are the quintessential starting points for these two lines.

Shortly after Dhodha House came the decision of Banyan Tree from the Delhi High Court in 2009. Here a foreign plaintiff brought a passing off action in the Delhi High Court against a Hyderabad-based defendant. The basis for the jurisdiction was the accessibility of the defendant's website, through which it allegedly solicited customers. The plaintiff relied on section 20(c) of the CPC.

In a ruling well ahead of its time, the Court held that to establish jurisdiction the plaintiff must show that the defendant purposefully availed itself of the forum by specifically targeting customers in that State. It also held that the targeting must be in a commercial context and not in an abstract or isolated manner, and that it impacted the plaintiff's business, goodwill and reputation in Delhi. In reaching this conclusion, the Court reviewed the jurisprudence of other common law countries that have wrestled with internet jurisdiction. The Court traced the early judgments, which relied on fair play and substantial justice in matters of jurisdiction, to the later judgments balancing subjective territoriality tests [intention directed at the forum state] and objective territoriality tests [impact or harm felt in the forum state], to establish a concrete yet just test that focused on targeted customers as a basis to show purposeful availment.

Another judgment that embodied concepts of fair play and justice, and that circumscribed the territorial jurisdiction of a Court, was the Supreme Court's decision in Sanjay Dalia. Here, the Court laid down the correct interpretation that where a plaintiff has an office and the cause of action complained of occurs at that location, it is this forum that the plaintiff must avail itself of, and not some distant court where the plaintiff has another office. The case arose out of a copyright infringement in Mumbai, where the defendant and the plaintiff both had their principal offices, but the action was brought in Delhi, where the plaintiff's subordinate office was located. Taking a dim view of this form of forum shopping, the Supreme Court considered the Explanation to section 20, the Joint Committee report recommending changes to section 62 of the Copyright Act, and principles of statutory interpretation, to restrict the jurisdiction to the location where the cause of action and the office of the plaintiff coincide. Soon, the Delhi High Court followed and codified the principle in the case of Ultra Home in a neat manner in 2016.

Broadly, this line of judgments has read section 20(c) of the CPC restrictively, to ensure the connection between the cause of action and the forum state is genuine. Later cases apply these principles with some variations but follow the same pattern.

The other line concerned the interpretation of section 20(a) of the CPC [or long arm provisions in the Trade Marks Act and the Copyright Act]. In 2014, the Delhi High Court was confronted with a peculiar case. Wrestling and WWE became popular in India. WWE USA did not have an office in India. It, however, had a website over which fans could buy official merchandise, and its TV program was broadcast widely in India and in Delhi. Copycats followed and its merchandise was knocked off pervasively. WWE USA brought a trademark infringement action against a Mumbai seller in Delhi. The case was set up under section 134 of the Trade Marks Act, and it argued that the Court had jurisdiction because WWE USA carried on business in Delhi. It had a website that was accessible in Delhi and sold directly to customers in Delhi [and its programs were broadcast in Delhi].

In a significant judgment [that confined Banyan Tree to section 20(c)], the Court ruled that WWE USA carried on business in India by applying the principles laid down in the judgment of Dhodha House. It felt that all the essential parts of the business were present in Delhi. The customers were located in Delhi. They purchased via the WWE website in Delhi. They paid in Delhi. They received their goods in Delhi. It was as if there was a shop in Delhi from which WWE carried on business. A virtual presence was the same as a physical one in the age of the internet. It opened the floodgates again for trademark and copyright matters. WWE was a shot in the arm for internet matters. Soon plaintiffs crafted their matters under section 20(a) [or the provisions of the Trade Marks Act or the Copyright Act] rather than section 20(c).

Kohinoor took this line and expanded it. Taking only the bare principles from WWE and other cases, the Court determined that mere accessibility of a website within the State was sufficient to confer jurisdiction. Consequently, to carry on a business the mere existence of a website was sufficient; every place from which the website was accessible was a marketplace; actual transactions were not necessary; and once infringing goods were available for sale on any interactive website, territorial jurisdiction was established. Kohinoor brings the circle back to the starting point, where the plaintiff argued that a business on the internet is a business everywhere.

Unification?

The two lines run in opposite directions. In one corner is the restrictive ‘cause of action’ line, which derives from the old concepts of fair play and substantial justice. A defendant should not be dragged to an unknown forum by a plaintiff. The jurisprudence requires the defendant [or plaintiff] to show that they set up the website and targeted customers in the state to purposefully avail themselves of the forum. The Courts in other countries are also evolving similarly. In the other corner is the expansive ‘carrying on business’ line, based on the reality of internet businesses. Rapid scaling, mature supply chains and genuine ability to sell to customers across India play a part. Mere accessibility is sufficient for territorial jurisdiction — that is the law here.

Yet these two lines frequently conflict. Can a plaintiff, unable to show cause of action, nevertheless sustain a plea of carrying on business? Should a defendant advertising widely be allowed to argue that it did not target specific customers? It also throws up unintended questions — can two foreign companies litigate in Delhi merely because their websites are accessible there? Can a third-party e-commerce website be sufficient to establish jurisdiction? And what is an interactive website?

The debate is no longer merely theoretical. In August 2026, the Delhi High Court, in Hindustan Unilever Limited, recognised the competing approaches in Banyan Tree, World Wrestling Entertainment and Kohinoor Seed Fields, and referred the larger question of territorial jurisdiction in online IP disputes for consideration by a Larger Bench. The next chapter of internet jurisdiction may, therefore, be written sooner than expected.

Unification would help!

Postscript

We are far from the last case of internet jurisdiction. Areas such as civil procedure and jurisdiction are complex. In an era of slow business progress, the framers of our Civil Procedure Code took four attempts to get it right. The internet [and now AI] is disrupting all social and commercial order at unprecedented rates. Will the law keep pace? But between the Banyan Tree test and the WWE test, we should ask why Kohinoor happened. Kohinoor, however, was a response to what every business ultimately wants — quick protection of IP. Most courts in India are slow to respond to IP. This is a reality. It is also a reality that countries that have respected and protected IP have attracted better talent, higher investment and have done consistently better. We aspire to be a technology and innovation giant. Our manufacturing and technology sectors would benefit from a strong IP regime and a quick justice system. But most Courts in India do not treat IP as a priority. There are only five High Courts that have original jurisdiction for IP. The dockets in most of these courts are slow. Most District Courts are not equipped to handle complex matters of patents, copyright or trademark. Without a strong regime, infringers crop up. This leaves the plaintiffs in a precarious position when it comes to enforcement of their rights. And then once in a while Kohinoor happens!

[The author is an Executive Partner and leads IP Litigation at Lakshmikumaran & Sridharan Attorneys]

References

Statutes and Subordinate Legislation

Code of Civil Procedure, 1908 (Act V of 1908), ss. 15–20, and the Explanation to s. 20; Order VII Rule 10; Part X, ss. 121–131.

Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976), which recast the Explanation to s. 20.

Code of Civil Procedure, 1859 (Act VIII of 1859); Code of Civil Procedure, 1877; Code of Civil Procedure, 1882.

Trade Marks Act, 1999, s. 134(2); Copyright Act, 1957, s. 62(2) (the additional forum where the plaintiff resides, carries on business or personally works for gain).

The Seeds (Control) Order, 1983, issued under the Essential Commodities Act, 1955 (dealer's licence for the sale of notified seed in a State).

Cases — Supreme Court of India

Dhodha House v S.K. Maingi, (2006) 9 SCC 41 : AIR 2006 SC 730 (B.P. Singh and S.B. Sinha, JJ.), decided 15 December 2005.

Indian Performing Right Society Ltd v Sanjay Dalia, (2015) 10 SCC 161 : AIR 2015 SC 3479 (Jagdish Singh Khehar and Arun Mishra, JJ.), decided 1 July 2015.

Patel Roadways Ltd v Prasad Trading Co, AIR 1992 SC 1514 : (1991) 4 SCC 270 (N.D. Ojha, S. Ranganathan and M. Fathima Beevi, JJ.), decided 6 August 1991 (on the Explanation to s. 20 CPC).

Cases — High Courts

Banyan Tree Holding (P) Ltd v A Murali Krishna Reddy, 2009 SCC OnLine Del 3780 : (2010) 42 PTC 361 (Del) (DB) (A.P. Shah, C.J. and S. Muralidhar, J.), decided 23 November 2009.

World Wrestling Entertainment, Inc v M/s Reshma Collection, 2014 (60) PTC 452 (Del) (DB) : (2017) 237 DLT 197; FAO(OS) 506/2013 (Badar Durrez Ahmed and Vibhu Bakhru, JJ.), decided 15 October 2014.

Ultra Home Construction Pvt Ltd v Purushottam Kumar Chaubey, 2016 SCC OnLine Del 376 : 227 (2016) DLT 320 (DB) (Badar Durrez Ahmed and Sanjeev Sachdeva, JJ.), decided 20 January 2016.

Burger King Corporation v Techchand Shewakramani, 2018 SCC OnLine Del 10881 (Prathiba M. Singh, J.), decided 27 August 2018.

Kohinoor Seed Fields India (P) Ltd v Veda Seed Sciences (P) Ltd, 2025 : DHC:2593 (Amit Bansal, J.), order dated 16 April 2025 (Single Judge, returning the plaint).

Kohinoor Seed Fields India (P) Ltd v Veda Seed Sciences (P) Ltd, 2025 SCC OnLine Del 8727; FAO(OS)(COMM) 66/2025 (C. Hari Shankar and Om Prakash Shukla, JJ.), decided 3 December 2025 (Division Bench).

Hindustan Unilever Limited v Kwick Living (I) Private Limited, 2026 SCC OnLine Del 6451, (A.J. Bhambhani, J.), decided on August 25, 2026

Comparative Authorities on Internet Jurisdiction

Zippo Manufacturing Co v Zippo Dot Com, Inc, 952 F Supp 1119 (WD Pa 1997) (sliding scale of website interactivity); Calder v Jones, 465 US 783 (1984) (effects test) — both relied upon in Banyan Tree.

1-800 Flowers Inc v Phonenames Ltd, [2000] FSR 697 (Ch), affirmed [2001] EWCA Civ 721 : [2002] FSR 12 (CA) (rejecting the ‘tentacle’ theory of worldwide use).

Euromarket Designs Inc v Peters and Crate & Barrel Ltd, [2001] FSR 20 (Ch) (Jacob J) (the ‘super telescope’ analogy; mere accessibility is not use in the forum).

Braintech Inc v Kostiuk, (1999) 171 DLR (4th) 46 (BCCA) (Canada); Dow Jones & Co Inc v Gutnick, (2002) 210 CLR 575 (HCA) (Australia).

Reports and Official Materials

Law Commission of India, 27th Report on the Code of Civil Procedure, 1908 (1964) (historical background to the 1859, 1877, 1882 and 1908 Codes).

Law Commission of India, 54th Report on the Code of Civil Procedure, 1908 (1973) (examining s. 20 and its Explanations).

Report of the Joint Committee on the Copyright (Amendment) Bill, relied upon in argument in Sanjay Dalia on the object of s. 62(2) of the Copyright Act, 1957.