Location-Aware Websites, Location-Blind Law: Towards A Targeting-Based Test For Online Jurisdiction In Indian Trademark And Copyright Disputes
Summary: Indian courts face a growing jurisdictional challenge when trademark infringement, copyright infringement and commercial disparagement occur through websites accessible across the country. The article examines whether a website’s mere accessibility or ability to complete transactions should permit proceedings in every forum, or whether the defendant must demonstrate a deliberate commercial connection with the particular territory. The dispute in Hindustan Unilever Ltd v Kwick Living (I) Pvt Ltd, involving allegedly disparaging advertising for cleaning products, has brought competing approaches to online jurisdiction before a Larger Bench of the Delhi High Court. The article traces the doctrinal tension between the additional plaintiff-side forums recognised by Sections 134 of the Trade Marks Act and 62 of the Copyright Act, the Supreme Court’s caution in Indian Performing Right Society v Sanjay Dalia, and the targeted-activity requirement associated with Banyan Tree Holding v A Murali Krishna Reddy. It contrasts that restrictive approach with later decisions considering online transactions, nationwide OTT availability and use of a trademark as grounds for jurisdiction. It argues that a merely interactive website no longer provides a meaningful indicator of a defendant’s intention to serve a particular territory. As a proposed reform rather than an established judicial rule, the author advocates examining location-personalised offers, pincode serviceability, promised deliveries, city-specific advertising and actual forum transactions. Such evidence could help distinguish purposeful targeting from passive availability. The article also addresses how screenshots, server logs and electronic records may support that inquiry, subject to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, and cautions that VPNs, automated platform settings and unreliable geolocation signals require careful evaluation. The proposal seeks a balanced jurisdictional standard: protecting rights holders who can demonstrate meaningful forum connections while reducing the risk that small online sellers face litigation in distant courts merely because their websites can be accessed there. It recognises that physical business presence or actual sales may independently resolve jurisdiction in some cases, leaving the targeting question most significant where those connections are absent.
I. Introduction
A visitor from Delhi and a visitor from Surat open the same e-commerce website. The first is shown a Delhi delivery banner, a pincode check confirming next-day dispatch, and offers linked to a nearby warehouse. The second sees something different. The website knows where each user is and acts on that knowledge. Yet in deciding where an online infringer or disparager may be sued, Indian courts have seldom asked what the website knew.
This is an IP question in the most practical sense. A trademark or copyright owner’s rights are worth only as much as its ability to enforce them, and online infringement is available everywhere at once, so the choice of forum decides how quickly an injunction can be obtained and which precedents apply. Indian law also treats IP plaintiffs differently from ordinary litigants: Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1957 allow suit where the plaintiff carries on business, notwithstanding Section 20 of the Code of Civil Procedure, 1908 (“CPC”). How these IP-specific provisions interact with the internet is now before a Larger Bench of the Delhi High Court in Hindustan Unilever Ltd v Kwick Living (I) Pvt Ltd.[1] This post examines the doctrinal conflict behind that reference and proposes a test drawn from the location-sensitive features of dynamic websites.
II. The Reference in Kwick Living
HUL sued Kwick Living, which markets cleaning products under the BECO brand, before the Delhi High Court. It sought relief for trademark infringement, copyright infringement, passing off, unfair competition and, principally, commercial disparagement, over a campaign that, HUL claimed, disparaged its Vim and Surf Excel brands across billboards, YouTube, Instagram and Kwick Living’s website. Kwick Living objected to territorial jurisdiction. Justice A.J. Bhambhani referred three questions on territorial jurisdiction in online IP disputes to a Larger Bench, citing conflicting earlier judgments.
HUL appealed. Before the Division Bench, Kwick Living confirmed a Delhi GST registration with a declared principal place of business, hoardings erected in Delhi, and sales in Delhi. The Division Bench returned a prima facie finding of maintainability and remanded the injunction application, keeping the jurisdictional reference open. The Division Bench did not engage with internet jurisdiction, and its reasoning on Section 20 CPC was brief. The Division Bench’s route shows that physical anchors can make the internet question unnecessary. The difficult cases are those without them.
III. A Doctrine Pulling in Two Directions
In Indian Performing Right Society v Sanjay Dalia, the Supreme Court read Sections 134 and 62 as supplying an additional forum for the plaintiff. It cautioned that a plaintiff cannot bypass the place where both its principal office and the cause of action lie.
For online conduct, Banyan Tree Holding (P) Ltd v A Murali Krishna Reddy held that mere accessibility of a website cannot confer jurisdiction. The plaintiff must show that the defendant intended to enter commercial transactions with forum users, specifically targeted the forum, and caused injury there.
Subsequent decisions diluted that threshold. In World Wrestling Entertainment Inc v Reshma Collection, the Court confined purposeful availment to the cause-of-action limb. For “carrying on business”, it applied the approach in Dhodha House v SK Maingi and treated a website on which a transaction can be concluded as sufficient. Nilesh Girkar v Zee Entertainment Enterprises Ltd extended this logic to nationwide OTT availability, and Burger King Corporation v Techchand Shewakramani treated “use” of a mark as capable of creating a cause of action under Section 20(c) CPC. The latter sits uneasily with Dalia‘s concern about proliferating forums.
A test designed to limit jurisdiction has become permissive. The operative question has shifted from “did the defendant aim at this forum?” to “could a user here have transacted?”
IV. Why “Interactive” Is the Wrong Filter
The interactiveversus-passive distinction is derived from the Zippo sliding scale adopted by U. S. law, which defined websites per how commercially interactive they were. It was plausible when all but the most primitive sites merely listed products and prices. Now virtually every commercial site is interactive, so the test excludes next to nothing. It merely implies a website’s capability to sell to the forum, not that its operator meant to. Courts applying it use technological capability as a substitute for commercial intentthe inference Banyan Tree chose not to make.
V. What Dynamic Pages Disclose
A web site can construct these objects dynamically for each user, allowing a web page to display different content according to who is requesting the page. There are three general types of feature:
1. Geo-personalised content including language, currency, banners, and offers that adapt to the detected location.
2. Serviceability controls pincode verification, area wise ordering commitments, acceptance, or rejection of orders for your region.
3. Location-targeted promotion: Prices or promotion ads more exactly aimed at consumers in a given city.
All of them mean rendering users from a certain place differently. There are far nearer to the “specific targeting” that is Banyan Tree’s ideal than having a working check-out button. I’d argue that a website that states a Delhi-user will receive a delivery within twenty-four hours has done some serious work in Delhi.
VI. A Proposed Test
This post contends that where the jurisdiction is founded on the conduct online the Larger Bench should treat transactional jurisdiction as necessary but not sufficient. It should go on to consider whether the actor targeted its online activity at the forum. Relevant considerations might include:
- forum-adapted content, pricing, or offers;
- a pledge to deliver or provide a service for the forum;
- location-targeted advertising or promotion; and
- real transactions with forum members.
It ought to be satisfied for both the “carrying on business” route under s 134(2) and the cause-of-action route. If it merely applies to one, the litigants will pick the route, which it is less restrictive as our case law has previously demonstrated.
The evidence is available by reasonable search. Retained page screenshot of, screenshots from equipment situated in the forum, logs of servers and geo-IP may be proven before the courtroom via a Local Commissioner / discovery and certificate u/s 63 of the Bharatiya Sakshya Adhiniyam, 2023.
VII. Anticipated Objections and Practical Impact
The evidence cuts both ways. A pincode check returning “not deliverable” shows that a defendant did not serve the forum. The test therefore protects defendants as much as plaintiffs.
Geo-detection is imperfect. VPNs, content delivery networks and shared IP ranges can distort location signals. Courts should treat such evidence as indicative of intent, to be weighed with other facts, rather than conclusive.
Plaintiffs can already sue at home. Section 134(2) lets a plaintiff sue where it carries on business. The test therefore matters most where a plaintiff relies on the defendant’s online conduct to bring the case to a forum in which it has no presence, which is the scenario Dalia sought to restrain.
Impact on brand owners and small sellers. For brand owners, the test offers a clearer route: evidence of forum-specific design supports suit in that forum, and that evidence can be gathered before filing. For small online sellers, D2C start-ups and marketplace sellers, it offers protection against being hauled to distant courts merely because a storefront is reachable there. A seller on a template platform may not control how pages personalise, so courts should ask whether the seller chose or knowingly accepted the configuration. Default platform behaviour should support only a weaker inference of targeting.
VIII. Conclusion
Territorial jurisdiction must tie the dispute to the forum that has a real interest in it. A rule of the form “did this transaction take place?” cannot do so on a borderless internet. But a rule of the form “was the defendant’s online presence created for this forum?” can. Dynamic sites provide the answer.
Kwick Living points out that physical anchors may not even get to the issue. The Larger Bench need not wait for them. It should merely resuscitate the targeting requirement that Banyan Tree killed, and offer trademark and copyright owners, and the sellers they sue, a practical, facts-and-fairness based algorithm for online jurisdiction.
Cases Discussed
- Dhodha House v S.K. Maingi (Supreme Court, 2005) — Carrying on business and territorial jurisdiction in intellectual property litigation.
- Indian Performing Right Society Ltd v Sanjay Dalia (Supreme Court, 2015) — Additional statutory forums and limits on forum shopping.
- Banyan Tree Holding (P) Ltd v A. Murali Krishna Reddy (Delhi High Court, 2009) — Purposeful targeting, online transactions and injury within the forum.
- World Wrestling Entertainment Inc v Reshma Collection (Delhi High Court, 2014) — Online commercial transactions and carrying on business.
- Burger King Corporation v Techchand Shewakramani (Delhi High Court, 2018) — Trademark use and territorial cause of action.
- Nilesh Girkar v Zee Entertainment Enterprises Ltd (Delhi High Court; date unverified) — Nationwide OTT availability and online jurisdiction.
- Hindustan Unilever Ltd v Kwick Living (I) Pvt Ltd (Delhi High Court, 2026) — Jurisdictional reference in online IP and disparagement litigation.
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Author: Nayonika Sharma | B.Com. LL.B. (Hons.) | Institute of Law, Nirma University
