Introduction
The internet has transformed the way businesses advertise, sell products, build brands and interact with consumers. An online marketplace can make a product available across India with a few clicks. Social-media campaigns can reach audiences in every State simultaneously. Websites can receive orders from customers thousands of kilometres away.
But does this mean that an intellectual-property owner can file an infringement suit in any court merely because the allegedly infringing website or advertisement can be accessed there?
The Delhi High Court has recently placed this question at the centre of an important jurisdictional debate. In Hindustan Unilever Limited v. Kwick Living (I) Private Limited, Justice Anup Jairam Bhambhani referred important questions concerning territorial jurisdiction in online IP disputes to a Larger Bench after identifying tensions between different lines of Delhi High Court precedent.
The development is particularly significant for trademark owners, copyright holders, e-commerce businesses, digital advertisers and online marketplaces because it addresses a fundamental question:
When digital activity is accessible everywhere, where can an IP infringement suit legally be filed?
1. The HUL–Kwick Living Dispute
The reference arose from a commercial suit filed by Hindustan Unilever Limited (HUL) against Kwick Living (I) Private Limited concerning an advertising campaign titled “War on What’s Hidden.”
HUL alleged that the campaign disparaged its products, including Vim and Surf Excel, through allegedly misleading comparative claims. The campaign was disseminated through billboards, social-media platforms such as YouTube and Instagram, and Kwick Living’s website.
Kwick Living challenged the territorial jurisdiction of the Delhi High Court.
Its principal argument was that both companies had their registered offices in Mumbai and that the plaint specifically identified a physical hoarding in Mumbai. Therefore, according to the defendant, there was no sufficient territorial connection with Delhi.
HUL, on the other hand, relied upon its corporate presence in Delhi and the accessibility of the impugned digital campaign and commercial website within Delhi. It invoked Section 20(c) of the Code of Civil Procedure, 1908, Section 134(2) of the Trade Marks Act, 1999, and Section 62(2) of the Copyright Act, 1957.
The dispute consequently moved beyond the merits of the advertising campaign and into the larger question of where an online IP dispute can properly be adjudicated.
2. The Three Legal Provisions at the Heart of the Dispute
The jurisdictional controversy primarily involves three statutory provisions.
Section 20 of the CPC
Section 20 of the Code of Civil Procedure generally permits a civil suit to be instituted where the defendant resides or carries on business, or where the cause of action arises wholly or partly.
For online disputes, Section 20(c) becomes particularly important because a claimant may argue that part of the cause of action arose within a particular territory due to online availability, commercial transactions or injury suffered there.
However, mere internet accessibility cannot automatically mean that a cause of action arises everywhere.
Section 134 of the Trade Marks Act, 1999
Section 134 provides a special jurisdictional mechanism for suits concerning trademark infringement and certain related claims. It permits a registered proprietor or certain other eligible plaintiffs to institute proceedings in a court having jurisdiction, including on the basis of where the plaintiff actually and voluntarily resides or carries on business, subject to the statutory framework and judicial interpretation.
Section 62 of the Copyright Act, 1957
Section 62 similarly creates a special jurisdictional provision for copyright infringement proceedings.
The important issue is therefore not simply whether one provision applies, but how Section 20 CPC interacts with Sections 134 and 62 and how these provisions should operate in the digital economy. The Delhi High Court has now referred precisely this interaction for authoritative consideration by a Larger Bench.
3. Mere Accessibility of a Website: Is That Enough?
This is perhaps the most important practical question.
A website hosted in one city can be accessed from almost every part of India. If accessibility alone were sufficient to establish territorial jurisdiction, an IP owner could potentially argue that courts across the country have jurisdiction.
That approach creates an obvious difficulty.
A company could potentially face litigation in numerous jurisdictions even where:
- it has no office;
- it has no employees;
- it has no physical presence;
- it has conducted no targeted advertising;
- it has made no sales;
- and no identifiable commercial transaction has occurred there.
The Delhi High Court cautioned against allowing the internet to make territorial jurisdiction so broad that corporations could effectively sue anywhere in India merely because their digital content was accessible there.
This does not, however, mean that online conduct can never create territorial jurisdiction.
The critical question is the nature and extent of the defendant’s connection with the forum.
4. From “Accessibility” to “Purposeful Availment”
Earlier Delhi High Court jurisprudence, particularly Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy, adopted a more restrictive approach towards internet-based jurisdiction.
The underlying principle is that mere accessibility of a website is insufficient. There must be circumstances demonstrating that the defendant purposefully availed itself of the jurisdiction or specifically targeted the relevant forum.
This approach attempts to distinguish between:
Passive online presence
A website is technically accessible in Delhi, but there is no evidence of targeting Delhi consumers.
and
Purposeful commercial activity
The defendant actively markets, sells or conducts transactions with customers in Delhi through an interactive platform.
The distinction becomes particularly important in e-commerce disputes.
5. The E-Commerce Problem
Traditional territorial jurisdiction developed in an era of physical commerce.
A retailer would have a shop.
A manufacturer would have a factory.
A distributor would operate from a defined territory.
A customer would purchase goods at a physical location.
Digital commerce has disrupted that model.
An e-commerce website can simultaneously:
- advertise products;
- receive orders;
- process payments;
- arrange delivery;
- communicate with customers; and
- generate sales across multiple jurisdictions.
Consequently, the Delhi High Court has faced cases where an interactive website capable of completing commercial transactions has been treated as having a stronger jurisdictional connection than a merely informational website.
In Kohinoor Seed Fields India (P) Ltd. v. Veda Seed Sciences (P) Ltd., for example, the Division Bench took a broader approach towards interactive commercial websites. This approach has been contrasted with the stricter internet-jurisdiction principles associated with Banyan Tree.
The resulting conflict has now become significant enough to warrant consideration by a Larger Bench.
6. The Importance of Indian Performing Rights Society v. Sanjay Dalia
The Supreme Court’s decision in Indian Performing Rights Society Ltd. v. Sanjay Dalia remains central to the jurisdictional debate.
The judgment cautioned against interpreting the special jurisdiction provisions under the Copyright Act and Trade Marks Act in a manner that permits plaintiffs to select an otherwise distant and unconnected forum merely because they maintain a subordinate office there.
The principle is aimed at preventing forum shopping and abuse of jurisdictional provisions.
Recent Delhi High Court decisions have continued to grapple with how that principle should operate in an e-commerce environment.
The problem becomes more complex when the plaintiff’s principal office, subordinate office, cause of action and online commercial activity are located in different places.
7. Why the Larger Bench Reference Matters
Justice Bhambhani referred three significant questions to a Larger Bench:
- Whether IP suits are governed by Section 20 CPC, Section 134 of the Trade Marks Act, Section 62 of the Copyright Act, or an interplay of these provisions—and, if so, how that interplay should operate.
- Whether a corporate plaintiff must sue at its principal or registered office when part of the cause of action has arisen there.
- What territorial-jurisdiction test should apply to online transactions in IP disputes in light of differing approaches in earlier Delhi High Court decisions.
These questions have implications far beyond the parties in the particular litigation.
They concern the basic relationship between territorial jurisdiction and borderless digital commerce.
8. Does the Judgment Mean Online IP Suits Cannot Be Filed in Delhi?
No.
It would be incorrect to interpret the reference as laying down a final rule that online activity can never confer jurisdiction.
The Court has referred the legal questions to a Larger Bench because conflicting principles require authoritative clarification. The Larger Bench is expected to provide greater certainty on the appropriate test.
Therefore, the present development should be understood as a jurisdictional clarification in progress, rather than a final prohibition against filing online IP suits in Delhi.
9. What Could Establish a Stronger Territorial Connection?
Although the final position remains to be authoritatively settled, businesses involved in IP disputes should carefully document facts demonstrating a genuine connection with the chosen forum.
Depending on the facts, relevant evidence may include:
- actual sales to customers within the jurisdiction;
- invoices and transaction records;
- delivery of allegedly infringing goods within the territory;
- targeted advertising directed at consumers in the jurisdiction;
- location-specific commercial campaigns;
- evidence of customer interaction;
- orders placed through an interactive website;
- payment and delivery records;
- deliberate commercial solicitation of customers in the territory; and
- identifiable commercial injury connected with the forum.
A mere screenshot showing that a website opens on a computer in Delhi may present a substantially weaker jurisdictional case than evidence demonstrating actual, purposeful and commercially meaningful activity in Delhi.
A recent Delhi High Court decision in Rukhmani Keshwani v. Raju Agarbatti Works illustrates the importance of the factual context: the Division Bench found a real and substantial territorial nexus where interactive online listings and actual commercial transactions and deliveries in Delhi were established.
10. Implications for E-Commerce Businesses
The issue is especially important for online businesses.
A company selling products across India should not assume that pan-India availability automatically means pan-India jurisdiction.
At the same time, businesses should understand that deliberately conducting commercial activity within a particular territory may create meaningful jurisdictional consequences.
Companies should therefore maintain reliable records concerning:
- geographic sales;
- delivery locations;
- online advertising;
- marketplace listings;
- customer orders;
- website functionality;
- territorial targeting;
- distributor arrangements; and
- physical and corporate offices.
Such evidence may become crucial when a defendant challenges territorial jurisdiction at the preliminary stage.
11. Implications for IP Owners
For trademark and copyright owners, the ruling highlights the importance of careful jurisdictional pleadings.
An IP owner should not merely state that an infringing website is accessible within the territorial jurisdiction of a court.
The pleadings should, where supported by evidence, identify the specific commercial or infringing conduct connecting the defendant to that jurisdiction.
This could include actual sales, targeted commercial solicitation, specific online transactions, delivery of infringing goods or other facts demonstrating that the alleged infringement has a meaningful territorial nexus.
This approach is also consistent with the broader judicial concern that special jurisdiction provisions should not become instruments for forum shopping.
12. The Larger Policy Question: Can Territorial Law Adapt to the Internet?
The underlying problem is structural.
The internet does not respect physical boundaries, but courts necessarily operate within territorial boundaries.
If accessibility alone determines jurisdiction, territorial jurisdiction could become practically limitless.
If courts insist upon a purely physical connection, however, legitimate victims of digital infringement may face difficulty obtaining effective remedies against businesses that operate almost entirely online.
The law therefore needs a balanced test.
Such a test must protect:
Access to justice
IP owners should have meaningful remedies against online infringement.
Predictability
Businesses should be able to anticipate where they may be sued.
Fairness
Defendants should not be exposed to litigation in completely unconnected jurisdictions.
Technological reality
The law must recognise genuine online commercial transactions.
Prevention of forum shopping
Jurisdictional provisions should not be manipulated merely to select a preferred forum.
13. A Potential Turning Point for Digital IP Litigation
The Delhi High Court’s reference comes at a time when Indian courts are increasingly required to apply traditional procedural principles to digital commerce.
The question is no longer simply whether a website is accessible.
It is increasingly about what the website does, whom it targets, where transactions occur, and whether those activities create a legally sufficient connection with the forum.
The Larger Bench’s eventual decision could therefore influence future litigation involving:
- e-commerce platforms;
- online marketplaces;
- social-media advertising;
- digital copyright infringement;
- trademark infringement;
- comparative advertising;
- online passing-off;
- domain names;
- digital marketplaces; and
- cross-border or pan-India online businesses.
Conclusion
The Delhi High Court’s latest development sends an important message: the borderless nature of the internet cannot automatically erase the territorial boundaries of courts.
Online availability and territorial jurisdiction are related, but they are not necessarily synonymous.
The central legal challenge is to identify the point at which digital accessibility becomes purposeful commercial activity sufficient to create a cause of action within a particular territory.
The reference in Hindustan Unilever Limited v. Kwick Living (I) Private Limited is therefore significant because it seeks to bring greater clarity to the competing principles developed in earlier cases.
Until the Larger Bench settles the questions, businesses and IP owners should approach territorial jurisdiction in online disputes with caution. Actual commercial nexus, purposeful targeting and evidence of territorial activity may prove far more important than mere website accessibility.
In the digital economy, the question is no longer simply “Can the website be accessed here?”
The more legally meaningful question is:
“Did the defendant purposefully conduct the relevant commercial or infringing activity here?”
That distinction may shape the future of intellectual-property litigation in India’s e-commerce era.