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17. Learned counsel submits that even with respect to protection of intellectual property rights, the legislature by amendment of 2012 has inserted Section 65A and Section 65B in Copyright Act, 1957 providing for Protection of Technological Measures, and Rights Management Information respectively. Learned counsel also places reliance on various news articles exhibiting the growing trend in e-commerce based business models, and the growth of e-retailing.

18. Learned counsel next places reliance on Paragraph 16 of the decision of the Madras High Court in Wipro Limited Vs. Oushadha Chandrika Ayurvedic, in O.S.A Nos. 64 to 67 of 2008 decided on 29.02.2008 to submit that Section 134 of the Act is a special privilege conferred upon the proprietor of a registered trademark to institute a suit for infringement where he carries on business. Learned counsel submits that Section 134(2) begins with a non obstante clause and the very purpose of Section 134(2) of the Act having an overriding effect on provisions of the CPC, is to prevent rampant piracy/infringement.

19. Learned counsel submits that the issue whether the plaintiff "carries on business" within the jurisdiction of this Court-within the meaning of Section 134 (2) of the Trademarks Act, 1999 („Act‟ hereinafter), is a mixed question of fact and law, and the court can adjudicate on the aspect of jurisdiction even at the final stage of the suit.

20. As aforementioned - the plaintiff is claiming jurisdiction of this court by placing reliance on Section 134(2) of the Act and Section 62(2) of the Copyright Act which are pari materia. The plaintiff specifically relies on the "carries on business" clause on the basis of three facts, viz. firstly, that the programmes of the plaintiff are broadcast in Delhi, secondly on account of the fact that the merchandise of the plaintiff is available in Delhi, and thirdly, because the plaintiff‟s website is accessible to its clients in Delhi. I will deal with each of the contentions separately below.

21. I may deal with the plaintiff‟s submission regarding territorial jurisdiction on account of its website being accessible in Delhi first, as bulk of the submissions have been advanced on this issue. Section 134(2) of the Act uses the expression "carries on business". The objective of inserting Section 134(2) was to provide the plaintiff a convenient forum to file a suit for infringement, as long as the plaintiff voluntarily resides, carries on business or personally works for gain at such place. The said provision goes beyond the normal rules laid down in the C.P.C. for vesting jurisdiction in Courts. The test to be satisfied as regards the aspect of carrying on business has been laid down in Dhodha House (supra). The sum and substance of the criteria laid down in Dhodha House (supra) is that an essential part of the plaintiff‟s business, coupled with an element of control exercised by the plaintiff, must exist in such place where the plaintiff claims to be carrying on business either on its own or through an exclusive agent.

24. In Intas Pharmaceuticals Ltd. v. Allergan Inc, 2006 (132) DLT 641 (DB), a Division Bench of this Court held that Section 134(2) does not whittle down the provisions of Section 20 of the CPC but provides an additional forum and a place for filing a suit in case of an infringement of a trademark. Therefore, if the plaintiff can satisfy the conditions laid down in Section 134(2), he may file a suit at such forum where he carries on business, but if the test as regards "carries on business" as laid down in Dhodha House (supra) is not satisfied, the plaintiff has to then take resort to the provisions of the CPC with regard to jurisdiction contained in Sections 15 to 20.