TRANS-NATIONAL LITIGATION T
he issue of a national court assuming jurisdiction of trans-national litigation in intellectual property cases is a matter
of burning global debate. Many legal veterans argue that the courts should espouse a liberal approach and should assume jurisdiction; on the fl ipside, the courts and their adjudicators seem hesitant and rather sensitive about the principle of territoriality of rights. In the past half decade, the world has
narrowed due to the ability to limitlessly transfer information through the internet. Indian courts are not oblivious to this predicament faced by the IP fraternity. In light of the continuing debate, there has emerged scattered jurisprudence that illustrates the evolving Indian viewpoint on this unsettled subject. Although in India no set rules for private international IP law exist so far, a progressive perspective can be deduced from the various decisions of Indian courts, refl ecting their receptivity to entertain trans-national disputes while dealing with confl ict of laws. T e issue has been considered in the copyright
infringement case of Super Cassettes Industries v MySpace Anr 2011, where MySpace, a social network, argued that, as a US entity governed by US law (ie, the Digital Millennium Copyright Act), it is outside the jurisdiction of the Indian courts. T e Delhi High Court invoked the principle of ‘part of cause of action’ and proceeded to assume jurisdiction on the basis that the uploading of infringing songs on the MySpace platform was taking place from India and also that MySpace was amenable to the jurisdiction of Indian court. As a result, it was held that MySpace was
restrained from modifying works, adding advertisements or uploading infringing works on its website internationally. T is is a clear indication of the extra-territorial jurisdiction assumed by the Indian court. Another case is John Wiley and Sons and Ors
v Prabhat Chander Kumar Jain and Ors 2010. T e dispute centred on the unlicensed sale of books (the rights to which the plaintiff owned) to another country by the defendant. T e Delhi High Court proceeded to assume jurisdiction under the principle of ‘part of cause of action’ and ultimately prevented the defendant from carrying out the infringement by illegally exporting books to any foreign country. T e view taken in these decisions is also in
unison with the universally accepted principles of lex loci protectionis, ie, the IP law governing the place where protection is claimed. T is brings to light a conceivable jurisdictional
breakthrough in terms of evolving new rules for private international law in India with respect to trans-national IP disputes. T e ‘part of cause of action’ principle can be said to be one such rule of private international law in IP cases.
Crossing judicial borders
Indian courts are becoming more comfortable with assuming jurisdiction when a foreign party is involved in a case and drawing inspiration from best practices worldwide, as Sushant Singh and Nupur Lamba of Sushant M Singh and Associates explain.
Registered rights Entering the realm of registered rights, where the problem becomes more complex and the degree of territoriality is much stricter, the approach of the Indian courts largely remains in sync with the European courts—ie, to consider the issues on a case-by-case basis.
92 World Intellectual Property Review Annual 2015 World Intellectual Property Review November/December 2014 dispute relating
One such instance of a trans-border contractual patents is Magotteaux
to
Industries and Ors v AIA Engineering 2009. T e plaintiff sought an injunction to restrain the proceedings fi led in the US on the premise that parallel proceedings in the Delhi court would lead to the US proceedings being frivolous and
www.worldipreview.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140