TRANS-NATIONAL LITIGATION
and smoothly dispensed justice in this sphere. T e view taken by the Indian courts is in line with the scheme of the Brussels I Regulation and the Lugano Convention, which are widely used in the EU as guidelines for dealing with trans-border disputes and confl ict of laws situations. On similar lines, in Moser Baer India v
Koninklijke Philips Electronics and Ors 2008, the Delhi court realised that the parties had entered into an agreement containing an exclusive jurisdiction clause conferring jurisdiction on the District Court of the Hague, Netherlands. T e court held that the exclusive jurisdiction clause will prevail over any other rules of jurisprudence. T is view conforms with article 5 of the Protocol on Recognition which, although it deals with European patents, states that an exclusive jurisdiction clause in an agreement shall always be given prevalence. In the case of Banyan Tree Holding v A Murali
Krishna Reddy and Anr 2010 the Delhi court laid down the criterion for assuming jurisdiction in relation to internet-related activity especially when the jurisdiction is invoked on the basis of the business carried online. T e court then invoked the doctrine of ‘purposeful availment’. In terms of internet-related disputes, this would mean that it is essential to prove that the website is interactive to a degree that reveals specifi cally intended interaction with residents of the state where jurisdiction has been invoked. In World Wrestling Entertainment v Reshma
Collection 2014 it was held that a virtual shop on the internet is equivalent to a real shop and that the physical presence of a merchant is not necessary to assume jurisdiction. T is new revelation broadens the horizons and lessens the
“IT WAS HELD THAT A VIRTUAL SHOP ON THE INTERNET IS EQUIVALENT TO A REAL SHOP AND THAT THE PHYSICAL PRESENCE OF A MERCHANT IS NOT NECESSARY TO ASSUME JURISDICTION.”
degree of strict rule of territoriality and helps mitigate hazards and injustices associated with constricted ideas of assuming jurisdiction by a court in trans-national IP disputes. It is discernible that there has been a clear
paradigm shiſt from the conventional and traditional notions of
territoriality to a more
modern and liberal approach. T ese questions are no longer strictly bound as sovereign acts, so therefore relegation of parties to the forum of origin of rights is no longer a favourable approach. T e formation of specifi c rules that eliminate
this problem entirely is needed. Realising this, the courts in India are swiſt ly becoming more equipped in assuming jurisdiction when a foreign element is involved, while drawing inspiration from best practices worldwide.
vexatious. T e conclusion was that, patents being intrinsically territorial in nature, infringement caused in diff erent countries will lead to separate proceedings. T is decision is a clear indicator that the Indian
courts are dealing with the jurisdictional hurdles of trans-national IP disputes and have very logically
www.worldipreview.com
Sushant Singh is the managing partner of Sushant M Singh and Associates. He has seven years of experience in litigation practice and has been involved in the IP fi eld for 15 years. He specialises in dealing with a variety of IP cases. He can be contacted at:
smsalawchambers@gmail.com
Nupur Lamba is the associate advocate at Sushant M Singh and Associates. She is a law graduate from the Faculty of Law, University of Delhi. She has two years of experience as a judicial clerk at the Delhi High Court and has handled prosecutions relating to trademarks, designs, copyright and patents. She can be contacted at:
nupur.legal@gmail.com
World Intellectual Property Review Annual 2015
93
PIYATHEP /
SHUTTERSTOCK.COM
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