Burger King Corporation vs Techchand Shewakramani & Ors on 27 August, 2018
13. Returning to the facts of the case and testing them on the anvil of the
tests laid down in Burger King Corporation (supra), Plaintiffs have 'used'
the mark by selling their products to the customers in Delhi, through
exclusive brick and mortar shops in the two malls, aforementioned through
their franchisees/licensees. Additionally, Defendant No. 1 operates its
website, which specifically targets consumers based in Delhi and though the
orders placed by the purchasers are fulfilled by Defendant No. 2, the
transaction is entered into by the consumers at Delhi. Even assuming for the
sake of argument that Plaintiffs do not have an outlet in Delhi, in this day
and time, in my opinion, Defendants' conduct of business through a website,
where they offer goods for sale, targeting customers in Delhi, thereby raising
queries, would confer jurisdiction on this Court as there is 'offer for sale'
and consequently 'use' of the trademark, within the territorial jurisdiction of
this Court. Plaintiffs have filed a screenshot of the website of Defendant
No. 1, showing availability of the products, alleged to be counterfeit and the
same are accessible not only globally but also in India, including Delhi. The
fact that the goods offered on this website are accessible to customers at
Delhi and are also delivered, when an order is placed, is reflected from the
'location PIN code' appearing on the screenshot of the website:-