Jurisdiction Issues of Intellectual Property Violations in Cyber Space

The unique matrix of the cyberspace has produced different categories of infringements including hyper linking, framing, Meta-tags, spamming and digital copyrights violation and many other similar concepts. This article explores the jurisdiction issues with such crimes and the related laws and loopholes that need to be addressed.

The IP violations are bad and getting worse day by day. To be a programmer, it requires one to understand as much law as one does technology. Lately, there has been a downside to the trend of dependence upon internet; there has been difficulty in the detection and protection of the Intellectual Property Infringements in the virtual space. ‘Intellectual Property’ includes creative and literary outputs of human mind like novels, music, motion pictures, industrial designs or inventions that are used for commercial purpose. The absence of the territorial limits on the Internet, along with the anonymity has opened doors for infringement of intellectual property rights. In the face of uncertainty due to the advent of the internet, the rules of the jurisdiction in Indian Jurisprudence are very clear. Majorly, 3 statutes are considered while adjudicating over intellectual property violations which are, Code of Civil Procedure, 1908, Copyright Act, 1957 and Trademarks Act, 1999.

Topics Covered in this article

The Growing Case of IP Violations

The intellectual property violations in cyberspace comprise any unauthorized or unlicensed use of trademarks, trade names, service marks, images, music, or sound or literary matters. The unique matrix of cyberspace has produced different categories of infringements including hyperlinking, framing, Meta-tags, spamming and digital copyrights violation, and many other similar concepts. The intellectual property infringements to a greater extent occur in the online medium rather than offline, due to the ease with which data can be accessed, copied, or transferred and the anonymity associated with cyberspace. Thus, giving rise to various jurisdiction issues. Most importantly, protecting intellectual property violations in global markets is a serious challenge as intellectual property violations are usually connected to more than one state. The base of this issue is the presence of multiple parties in various parts of the world who only have a virtual nexus with each other.  Traditional requirements encompass two areas; firstly, the place where the defendant resides and secondly, where the cause of action arises. The concept of territoriality is inseparable from the jurisdiction. The internet pays no heed to the physical location of parties because transactions in cyberspace aren’t geographically based. The principle of territoriality is actually questioned with the advent of digitalization and globalization of trade and commerce where the scope of protection isn’t limited to a particular specified territory. There exists no international jurisdiction law for a uniform and universal application and such questions are generally regarded as matters of conflict of laws. Further, the issues of jurisdiction take place as the contents of a website may be legal in one country whereas may be illegal in another. Due to an absence of uniform jurisdiction code, legal practitioners all over the world are left with a conflict of law.

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The courts in India have invoked principles to combat issues in the jurisdiction, majorly used are the two which are; ‘In Personam Jurisdiction’ and ‘Theory of Minimum contact’. In personam refers to a right, action, judgment that is attached to a specific person. Such suits are always against an individual person and only compensatory benefits are awarded. The Indian courts deal with such matters under the Code of Civil Procedure, 1908, sections 19 and 20. The case of Motion Pictures USA v. I Craves TV invoked this principle. The defendant in the case was involved in the sale of copyrighted television and entertainment programs through their site. In addition to its infringing activities, the defendant even issued advertising space to companies in the US. It was held that by infringing trademarks and copyrights within the US and advertising to American Viewers, the US courts had personal jurisdiction over this case. The theory of minimum contact was laid down by the court in the case of International Shoe v. Washington, the court ruled that a non-resident of a state may be sued in that state if the party has ‘certain minimum contacts’ with the state such that the maintenance of the suit doesn’t offend traditional notions of fair play and substantial justice.

Laws Regarding the Same

IT Act, 2000 was passed in India to deal with the emerging cyber issues. It basically aims to provide for the legal framework so that legal sanctity is accorded to all electronic records and transactions carried out by the means of electronic data. Jurisdiction issues arise due to the grey areas of the act which are that act fails to address the issue of cross-border taxation that may arise in international contracts, further it doesn’t deal with privacy and data protection on the internet and lastly the act doesn’t cover cyber laundering of money, spamming, phishing, cyberstalking, cyber squatting and many other innovative cyber-crimes.

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The Case law

The jurisdictional issues can be understood further by analyzing the judicial decisions in various cases. In Banyan Tree Holdings Pvt. Ltd. v. Murali Krishna Reddy which invoked Section 20 of CPC, held that since neither of the parties was based in Delhi, jurisdiction was asserted on the grounds of defendant’s solicit business in Delhi through their website giving rise to a cause of action in Delhi. The Madras HC in Wipro Ltd. v.  Oushadha Chandrika Ayurvedic explained that Section 62 of the Copyright Act and Section 134 of the Trade Mark Act prescribe an additional ground for attracting the jurisdiction of a court over and above the normal ground. A special right is conferred on the proprietor of the registered trademark to institute a suit for infringement of any trademark or copyright in the district within whose jurisdiction he resides or carries on business. In Marks & Spencer’s Case and the Yahoo Case, whereby any bad faith registration of the trademark by cyber-squatters with the intent to take advantage of well-known trademarks has been strictly dealt with and the mark has been transferred to the rightful owner. In Google V. Racha Ravinder; googlenetbiz.com was registered. The complainant, Google Inc filed a complaint. Proceedings were commenced. Google was also a well know Trademark. The complainants pleaded that the defendant’s website was similar to the Trademark Google, which had worldwide registration. It was submitted that the respondent had an ulterior motive or Bad faith in registering their website so as to confuse the web users and it violates the Trademark as it is identical and confusingly similar to the worldwide Trademark ‘Google’. The panel decision favored the complainant and ordered the transfer of the site to Google Inc. Similarly in, Tata Sons Limited vs. Monu Kosuri & others, the defendant was a well-known cyber squatter who had registered a number of domain names containing the name Tata which is a well-known brand name of the Plaintiff. It was held that Internet domain names are more than internet addresses and are entitled to protection equal to trademarks and the plaintiff was granted the ad interim injunction.

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In conclusion, it is heartening to note that in India, the judiciary has come down heavily to break the back of those who break IPR Laws in the cyberspace. Disparate substantive laws can be forged into an international framework to facilitate litigation of internet-related issues in an easier way. Though, uniformity of law will ensure that there is the ease of judicial proceedings. The Indian scenario is bound to witness more litigation in this specific field in the near future as it is of great importance that the judiciary explores and interprets the areas where there is still lacking.

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