India T.V vs. I.B.L.pptx

MIPR 2007 (2) 396
INDIA T.V. INDEPENDENT NEWS
SERVICES PVT. LTD. VS. INDIA
BROADCAST LIVE LLC & ORS.
Sakshi Antal

OUTLINE
 Case Name: India T.V. Independent News Services Pvt. Ltd. vs.
India Broadcast Live LLC & Ors.
 Citation: MIPR 2007 (2) 396, 2007 (35) PTC 177 Del
 Decided on: 10th July 2007
 Corum/Bench: Sanjay Kishan Kaul
 Provisions: Sec. 9(1)(a),(b) ,(c) and sec 134 of the
Trademarks Act, 1999, Order 39 C.P.C, UDRP,
ICANN,
Personal jurisdiction (non-residents), subject
matter

1. Whether personal jurisdiction can be applied by
the courts to the non-residents ?
2. Whether the impugned “mark” was infringed ?
3. Can mere access to a website allow a court to
constitute jurisdiction over a non-resident ?

The plaintiff, i.e. India T.V. Independent News
services launched their Hindi News Channel in India in
March 2004.
Their popular programs involve Breaking News, Aap ki
Adalat, Jago India etc.
Adopted the mark “INDIA TV” on 1st Dec 2002 and
applied for its registration in classes 38 and 41 in
2004.
The mark applied for in class 38 was published in
March 2006 and the mark in class 41 in February 2005

The use of the mark INDIA and TV being used was
published and no opposition to any of the
advertisements has been received within the
statutory period stipulated.
Plaintiff claims the mark “INDIA TV” to be a well
known mark having enormous reputation and fame and
being their original creation.
Plaintiff also owns the domain name “indiatvnews.com”
registered in 2003 for the purpose of live viewing.

The claim is against two defendants whose website
named as “indiatvlive.com” with words INDIA and TV
inserted inside a T.V. is owned by “godaddy.com” is
deceptive of the plaintiff’s mark.
Names and contact addresses were not mentioned
(mala fide)
INDIA BROADCAST LIVE and “indiatvlive.com” were
trademarks belonging to Defendant No. 2 (as per the
site)

Registration of the impugned domain name by the
defendants constitutes infringement, passing off and
dilution of the plaintiffs mark besides unfair
competition.
Filed the suit for permanently restraining defendants
from using the mark INDIA T.V., sell it to anyone
else or use it in any manner or any form. (para 10)
Defendants claim that the present court is forum non
conveniens and that they have not infringed any right
of the plaintiff.

 Different parties and Domains in Question:
1. Archer Media Communication Incorporated
(strategic relationship with IBL) (funded the impugned domain)
2. India Broadcast Live (IBL) (division of 2)
3. godaddy.com
4. jumptv.com (rival)
5. INDIA TV (P)
6. indiatvlive.com (IBL)
7. indiatvnews.com (P)

IA filed to seek an
interim injunction
restraining defendants
from using the mark
INDIA TV in any form
or at any place.
Defendants claim that
the present court is
forum non conveniens and
that they have not
infringed any right of
the plaintiff.
PLAINTIFF DEFENDANTS

Ex parte interim injunction
granted.
The case should be tried
in the present court only
because the Indian audience
have been targeted and the
defendants operate to gain
the benefit of the mark value
plaintiff possess in India.
Defendants file an I.A to
set aside the ex parte
order.
Def. 1 is a company
formed in U.S having no
Indian presence.
Only promoters are well
known Indian journalists.

Registration of the
impugned domain name by
the defendants
constitutes infringement,
passing off and dilution
of the plaintiff’s mark
besides unfair
competition.

The mark INDIA TV is
not capable of being
registered as the words
are of generic nature
and have direct
reference to the nature
of business of the
plaintiff.

Again, an injunction was
filed against Def. 1 from
proceeding with the action
instituted by it in the
Arizona District Courts
against the plaintiff.
(In respect of reverse domain
name hijacking seeking a
declaration of non-infringement
of the plaintiffs mark by Def.1)
The case has been filed in
Arizona because all the
defendants are American
entities and this court is
forum non conveniens
The registering authority
is in Arizona that is why
the case should be
prosecuted in Arizona
District Court.

The defendant filed that
case before the response
from the present court.
The orders of the injunction
are not being followed since
the IP address of the
domain is still visible
instead of indiatvlive.com
which is against the orders
of court.
No basis of the present
case because there is no
visual similarity in the
marks.
“indiatvlive.com” has been
removed & only the original IP
address have been put which
is within the limits of the
law.

Different views of
different courts on same
matter would cause chaos
and injustice.
The present court has
complete reason to listen
the present matter as it
involves business,
advertising and profits in
India.
District court of Arizona
has personal jurisdiction
over both Def. 1 and 3.
Plaintiff has not registered
the mark INDIA TV yet
and is misrepresenting
facts.
No steps will be taken in
Arizona until further order

There is no long arm'
statute as such in India
which would deal with
jurisdiction as regards
non-resident defendants.
Things that can be
considered in India for the
personal jurisdictional for
non-residents are:
Courts in U.S checks 3
factors to determine
jurisdiction for non-
residents. (para 29)
Long arm statutes was
enacted for this purpose.
If personal jurisdiction is
challenged by the Def. the
B.O.P is on plaintiff.

1. Whether the defendant's activities have a sufficient
connection with the forum state (India)?
2. Whether the cause of action arises out of the
defendant's activities within the forum?
3. Whether the exercise of jurisdiction would be
reasonable?
PLAINTIFF
Panavision vs Dennis

Hence, the defendant is
carrying on activities
within the jurisdiction of
this Court; has sufficient
contacts with the juris. of
the Court and our claim
has arisen as a consequence
of the activities of Def.1
within the jurisdiction of
this Court.
Personal jurisdiction
cannot be exercised over
non-residents merely
because their website is
accessible within the
jurisdiction of the court.
There has to be something
more to indicate
purposeful direction of
activity to the forum
state in a substantial way.

Def.1 has contacts in
India for personal
jurisdiction to be
exercised by this Court.
Website of the defendant
can be accessed from Delhi
is sufficient to invoke the
territorial jurisdiction of
this Court in the light of the
judicial principles enunciated.
Even if a small part of
the cause of action arises
within the territorial
jurisdiction of the High
Court, the same by itself
may not be considered to
be a determinative factor
compelling the High Court
to decide the matter on
merits. (Kususm vs. UOI)

Though the mark 'INDIA
TV consists of the word
'India' which has a
geographical connotation
in the context of news
channels, 'INDIA TV' as
a combination is
distinctive and is entitled
to protection
A domain name as an
address must, of
necessity, be peculiar and
unique and where a
domain name is used in
connection with a
business, the value of
maintaining an exclusive
identity becomes critical.

UDRP Panel provided for
in the policy can only
provide for cancellation
or transfer of the
impugned domain name
and not damages or
rendition of accounts as
has been prayed for by
the plaintiff in the
present suit.
In the present situation
situation; remedy
provided by ICANN would
be an equally efficacious
and appropriate remedy
and the plaintiff has
approached this court
mala fide instead of
approaching ICANN.

The defendant claims
that the marks INDIA
and TV is incapable for
registration and yet have
applied for the mark
INDIABROADCASTLIVE
and 'INDIATVLIVE‘
themselves.
The impugned domain
name was changed and
the IP address was
added instead which now
has been rectified as
“indiabroadcastlive.com”

IA 2611/2007 allowed.
Defendants were restrained from proceedings
the suit in Arizona
The order of 91.01.2007 was modified and
the domain name “indiatvlive.com” was allowed
to be used with a disclaimer

Since the respondents have discontinued the
use of impugned domain name and shifted to
“indiabroadcastlive.com” ; with a redirection
notice on typing the impugned domain name;
the respondents rectified the situation and
hence there is no further need to proceed
with the petition.
DISPOSED

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp 1119 (W.D Pa. 1997)
Cybersell Inc. v. Cybersell Inc, (Case No. 96-17087 D.C No. CV-96-0089-
EHC)
CompuServe Inc. v. Patterson, 89 F. 3d 1257 (6th Cir. 1996).
 Casio India Co. Ltd. v. Ashita Tele Systems Pvt. Ltd., 2003 (27) PTC 265
(Del.)
 Kusum Ingots and Alloys Limited v. Union of India, (2004) 6 SCC 254
Citi Corporation and Anr. v. Todi Investors and Anr. 2006 (33) PTC 631
Panavision International LP v. Dennis Toppen; Network Solutions Inc D.C.
Case No. CV-96-03284-DDP. Appeal No. 97-55467 *
Important cases among the one’s referred
Important cases among the one’s referred

Before considering to exercise personal jurisdiction over a non-resident the
court should ensure certain factors and their possibilities under 3 main
factors as discussed above .
Mere accessibility of website at a particular place is not a reason enough to
exercise jurisdiction, other factors and involvement must be proved by the
plaintiff.
 The infringement of the mark can be determined by the court but whether
the mark is competent or not that is not under the court’s competency.
Important points

India T.V vs. I.B.L.pptx

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