C. Hari Shankar JUDGMENT
C. Hari Shankar, J.
1. A seminal issue arises for consideration in the present case.
2. The plaintiff is a company incorporated in India. Though the plaint avers that documents showing involvement of the plaintiff, its subsidiaries and group companies in financial services including crypto currency, have been filed with the plaint, the documents with the plaint do not indicate that the plaintiff is itself dealing in crypto currency under any brand name or trade mark. They do indicate, however, that the plaintiff is, under its well-known brand name/trademark "TATA", providing a platform for trading in crypto currency.
3. Defendants 1 and 2 are situated in the U.K. and the U.S. respectively. They deal in crypto currency, under the name "TATA coin/$TATA". None of the defendants has any outlets in India, and it is not the case of the plaintiff that the defendants are carrying out any overt manufacturing or marketing activities within India.
4. The plaintiff seeks a permanent injunction, restraining the defendants from using the trademark "TATA", as part of the name under which their crypto currency is made available to the public, or as part of their corporate name or domain name.
5. Admittedly, the defendants' mark "TATA coin/$TATA" is not registered in India. The first question that arises for consideration is, therefore, whether the plaintiff can seek an injunction against the defendants' mark, the defendants being located outside the sovereign borders of India and, therefore, statutorily outside the reach of the Trademarks Act, 1999, as well as the Code of Civil Procedure, 1908 (CPC).
6. Mr. Pravin Anand, learned counsel for the plaintiff, asserts the existence of territorial jurisdiction of this Court, over the defendants, on the following grounds:
(a) The defendants' crypto currency can be purchased by any person in India, from the defendants' website.
(b) There is an admission, in the "White Paper" of Defendant 1, that it was involved in financial activities relating to India.
(c) Various persons from India had posted queries on the Twitter page of Defendant 1, regarding the modality for purchase of its "TATA coin/$ TATA" currency.
(d) Defendant 1's website www.hakunamatata.finance had 50 visitors from India each day.
(e) India was second in the list of countries with highest internet traffic to the www.hakunamatata.finance website.
(f) The Telegram page of Defendant 1 indicated that it had several Indian followers/members.
(g) These facts indicated that, there was "purposeful availment" by the defendants, of the jurisdiction of this Court, and they had made their crypto currency, under the infringing mark, available for purchase to customers in India and specifically in Delhi. Reliance was particularly placed on the webpage of Defendant 1 which contained a QR Code and instructions on how to purchase the crypto currency of Defendant 1 under the name "TATA coin/$TATA".
(h) The requisite "connection" between the activities of the defendants and prejudice caused to the plaintiff and customers in India undoubtedly existed.
(i) The "effect" of the defendants infringing activity was also felt within the jurisdiction of this Court, as the defendants' crypto currency could be purchased online by anyone located within such jurisdiction. Additionally, the availability of the defendants' crypto currency, under the allegedly infringing marks "TATA coin/$TATA" had adversely affected the plaintiff's business and had resulted in dilution of its goodwill. This, too, contributed to the "effect", felt within the jurisdiction of this Court, of the defendants' activities.
(j) The "who is" link on the defendants' website did not reveal any data on the basis of which the defendants could be identified. They had, therefore, completely masked their identity. In this connection, ........