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Cause of Action "26. The cause of action for institution of the present suit arose in the last week of October 2020, when the Plaintiff came across the impugned products being listed on the Defendants‟ interactive website namely www.nguard.in. It is pertinent to note that the Defendants have also published and uploaded images of the products bearing the impugned mark on the aforementioned website. Upon conducting further enquiries, the Plaintiff came to know that the products bearing the impugned mark are also available on third party e-commerce websites like Amazon, Flipkart, etc. The said cause of action is a continuous one and continues to subsist till the Defendants are restrained by an order of injunction passed by this Hon‟ble Court.

Jurisdiction

27. This Hon‟ble Court has the jurisdiction to entertain and try the present suit under Section 20 of Code of Civil Procedure since the Defendants‟ are carrying on their business and selling their products under the impugned mark at Delhi. The Defendants have also listed its products under the impugned mark on its interactive website namely www.nguard.in. from which an order can be placed all over India including Delhi. Moreover, the Defendants‟ products bearing the impugned mark are listed and available for sale on third party e-commerce websites such as www.amazon.in and www.flipkart.com which is accessible from Delhi. Through the said websites the Defendants can be contacted. The Plaintiff representative placed an order on www.amazon.in and Defendants‟ product under the impugned mark was delivered within the jurisdiction of this Hon‟ble Court. It is believed that the Defendants already have substantial customers in Delhi, within the jurisdiction of this Hon‟ble Court. The Plaintiff has its office at Delhi and is also selling its products at Delhi."

25. In Millennium & Copthorne International Limited (Supra), Court held that the test to be applied in an action for infringement and passing off is about the place where the injury has been caused to the plaintiff. The place where the deception has been caused to customers by the offending product of the defendant shall certainly have jurisdiction. Court emphasised on the causation of injury at a particular place to pin jurisdiction on a given place. It was held as follows:

"24. In continuation of what was held by the Division Bench in World Wrestling Entertainment, Inc., I may state that the mode of booking/reserving rooms and other facilities particularly of dining therein, in hotels/resorts/spas, has changed over the years with maximum number of bookings/reservations being made through such third party websites, so much so that the rates available on the third party websites are also found to be considerably lower than the rates offered through traditional mode of agents or offices in major cities. Judicial notice can be taken of the fact that much of the volume of businesses of hotels is now through such third party websites, in comparison to the business through direct bookings and/or through travel agents. Thus, if the Courts at Delhi will have jurisdiction over subject matter of suit owing to defendants having interactive website accessible at Delhi and enabling defendants situated outside Delhi to carry on business at Delhi, I see no reason to hold that it will not be so where the defendants, instead of hosting its own interactive website, avails the service of third party websites to carry on business at Delhi. There is no rationale for carving out such a distinction....
"67. The plaintiff has further asserted in its plaint that the defendants are indulging in online sale of the impugned product in Delhi through another website 'Indiamart'. Printouts of the 'Indiamart' website showing the defendants products range have been filed. A perusal of the 'Indiamart' website prima facie shows that it is an interactive website inasmuch as it permits the viewers to ask for price and specifically states "before dispatching the product, they are firmly tested and checked by the team of quality controllers". Accordingly, in the present case the "purposeful availment" as well as "sliding scale" and "effects" tests as stipulated in Banyan Tree Holding (P) Limited v. A. Murali Krishna Reddy and Anr., 2010 (42) PTC 361 (Del) are satisfied."