Who can judge the internet?
E-commerce has changed the traditional ways of doing business. Today, many companies run their businesses across the globe without having to have an actual physical presence in a given country. The intangible nature of the Internet has resulted in the dissemination of information across borders, but it has also allowed the infringement and passing-off of trademarks by infringers who may not be located or have any physical presence within the state or the country where the infringing activities take place.
Internet users’ first interaction with any website is through a domain name, used as a gateway to the virtual presence of a retailer. Domain names have now come to be identified with the trademark or trade name of companies.
Since they lead every consumer on the Internet to the relevant owner, usurping a domain name leads to a tremendous amount of confusion for the consumer, and a loss of goodwill and potential business for the real trademark owner. The protection of trademarks on the Internet, especially for domain names, is imperative.
The Internet Corporation for Assigned Names and Numbers (ICANN) has a Uniform Dispute Resolution Policy (UDRP) for the resolution of domain name disputes, but the remedies are limited to the transfer or cancellation of domain names. This has left parties needing to look to more traditional forums, such as courts, for remedies such as damages and injunctions. But it is not always clear whether national courts have jurisdiction over domain name cases.
The question of territorial jurisdiction over domain names and Internet-related issues was first addressed in India in Casio India Co. Ltd. v. Ashita Tele Systems Pvt. Ltd. The High Court of Delhi held that the mere ability to access the website gave the court territorial jurisdiction to decide on the matter at hand. The court referred to the Australian case of Dow Jones & Co. Inc. v. Gutnic, which held that due to the ubiquity, universality and utility of the Internet, any matter associated with it is subject to global jurisdiction.
In another case—(India TV) Independent News Service Pvt. Ltd. v. India Broadcast Live LLC & Ors—the High Court of Delhi ruled that it did not have jurisdiction over the domain name www.indiatvlive.com, because the defendant was based in Arizona. The court relied on the US circuit case Compuserve Inc. v. Patterson, which referred to a three-part test for deciding jurisdiction:
