Indian Kanoon - Search engine for Indian Law

6. Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of the plaintiffs relied upon the decision in India TV v. India Broadcast Live, 2007 (35) PTC 177 (Del) to canvass the point that in cases of interactive websites, this Court ought to exercise its jurisdiction. He further placed reliance on Casio India Co. v. Ashita Telesystems 2003 (27) PTC 265 to advance the proposition that the access to the website is sufficient to vest this Court with jurisdiction. Further reliance was placed on a decision of the District Court of the Massachusetts, United States reported as Hasbro inc v. Clue Computing, 994 F. Supp. 34. Mr. Kaul drew the attention of this Court to the affidavit of one Mr. DC Sharma, an independent investigator deployed by the plaintiffs. In his affidavit Mr. Sharma deposed as to how using the contacts provided on the defendants' websites, he contacted the Deputy Manager of the defendants and solicited information about the details of the 'Banyan Tree Retreat' project, which was duly supplied by electronic mail. He also drew the attention of the Court to the brochures sent by the defendants to Mr. DC Sharma. He argued that the website of the defendants, besides providing other information, also gave contact details and included feedback forms where customers could write comments and seek CS (OS) 894/2006 Page 5 information. Counsel argued that in these circumstances, there was sufficient material on record disclosing that a part of the cause of action, as understood under Section 20, CPC, arose within the jurisdiction of this court, though neither party resided or worked for gain within the jurisdiction of the court.

45. Insofar as the position in this country is concerned, there is no 'long arm' statute as such which deals with jurisdiction as regards non-resident defendants. Thus, it would have to be seen whether the defendant's activities have a sufficient connection with the forum state (India); whether the cause of action arises out of the defendant's activities within the forum and whether the exercise of jurisdiction would be reasonable.

46. I am in agreement with the proposition that the mere fact that a website is accessible in a particular place may not itself be sufficient for the Courts of that place to exercise personal jurisdiction over the owners of the website. However, where the website is not merely 'passive' but is interactive permitting the browsers to not only access the contents thereof but also subscribe to the services provided by the owners/operators, the position would be different. However, as noticed in the judgment in CyberSell Inc. case (supra), even where a website is interactive, the level of interactivity would be relevant and limited interactivity may also not be sufficient for a Court to exercise jurisdiction. In Panavision International LP case (supra), it was found that the registration of the plaintiff's mark as a domain name by the defendant had the effect of injuring the plaintiff in California and therefore the Court had jurisdiction. In CompuServe case (supra) again it was found that the defendant had contacted Ohio to sell his computer software on the plaintiffs Ohio based systems and sent his goods to Ohio further for their ultimate sale and thus those Courts had jurisdiction."

15. The Zippo analysis has been modified and narrowed down in subsequent judgments. Prominent is the Court of Appeal (3 rd Circuit) in Toys 'R' US v. Step Two, 2003 US App. Lexis 1355. The case here involved the use of a trademark Imaginerium by both the plaintiff and the defendant in their respective websites. The plaintiff was a New Jersey based corporation that manufactured and marketed toys. The defendant was a Spanish corporation also engaged in the same CS (OS) 894/2006 Page 13 business. Both the entities had registered their respective websites using the term 'imaginerium' since the mid nineties. The defendant did not have any official presence in the United States but operated an interactive website through which persons residing in New Jersey could place orders and receive products. The customers could also join an online club from which games and other content could be downloaded. The plaintiff also gave evidence of at least two residents in New Jersey having placed orders on the defendant's website and received the products too. The Court found that both the transactions were "orchestrated" by Toys. Even though the Court cited Zippo as the seminal authority, it went on to state that a commercially interactive website by itself was insufficient to establish jurisdiction, and that there had to be evidence that the defendant purposefully availed himself "by directly targeting its web site to the state, knowingly interacting with the residents of the forum state via its web site, or through sufficient other related contacts"

"The record in the present case does not allow me to come to the conclusion that the websites Intermix operates are interactive in nature. These websites do not allow users to communicate and exchange information with the sponsors of the site, or to order products online. But even if they could be characterized in such a way, I do not think Intermix could be found to have the level of interactivity with Canada that could justify a finding of minimum contact. The software that can be downloaded from Intermix's websites is free, there has been no targeting of Canada or of Canadian consumers in any specific way, there is no specific content for a Canadian audience, and Intermix has never purposely availed itself of Canada's laws."