FORUM SHOPPING

Jeni VarghesePatents Dept.

Altacit GlobalEmail: info@altacit.com Website: www.altacit.com

Topics

• Definition

• Forum Shopping aspects

• Forum shopping options

• Factors determining forum shopping

• Forum shopping by defendant

• Forum shopping in India

• Case Law

• Conclusion

Definition

•Forum Shopping is an informal term to define a party’s action of looking for a court or judge that is deemed likely to render a favorable result (Webster’s Law Dictionary )

Forum Shopping aspects

• Plaintiff engages in forum shopping when more than one court is the appropriate forum to hear a dispute.

• Plaintiff will want the dispute heard in the court which the plaintiff believes will render the MOST FAVOURABLE JUDGEMENT.

• Appropriate forum for any lawsuit depends upon

– which court has jurisdiction over the parties, and

– the subject matter of the case

Various options of Forum Shopping

• Plaintiffs are not limited to choosing between courts of different states.

• Plaintiffs may be able to forum shop between courts in different countries.

• Some rules/statutes, discourage this practice by limiting a plaintiff's choice of forum to locations convenient to both parties. – Example: The Uniform Child Custody Jurisdiction Act in

US, for example, limits the jurisdiction over child custody rulings to the home state of the child.

• Doctrine of forum non conveniens (Latin for "inappropriate forum“): allows a judge the power to transfer a case if the court selected is not the most convenient one.

• Parties to a contract may prevent forum shopping by inserting a forum selection clause or a choice of law clause in their contract. Such clauses are now generally enforced by the courts.

Factors determining Forum Shopping

• Plaintiff opts for forum shopping based on which court is likely to consider the case more favorably

• Proximity to the court

• Reputation of the judge in the particular legal area

• The forum is not convenient to the defendant or his witnesses

• Minor differences in governing law and procedure in different jurisdictions

Forum shopping by defendant

A defendant can also resort to forum shopping to have a case removed from the court where the plaintiff originally filed it.– The defendant may petition the forum court to

transfer the case to a more convenient forum

– If a case has been filed in another jurisdiction, the defendant may seek injunctive relief against the plaintiff in a second state, requiring the plaintiff to discontinue the action in the first forum and instead submit the case for hearing in more convenient forum.

Forum Shopping in India

• According to Section 20 of the Code of Civil Procedure, 1908 a plaintiff can file a suit only in the court within whose jurisdiction the defendant resides, or the court within whose jurisdiction the cause of action arises.

• Section 62 of the Copyright Act, 1957 and Section 134 of the Trade Marks Act, 1999 is an exception to this. Both these sections allows Plaintiff to sue alleged infringers before a court within whose jurisdiction the Plaintiff himself resides or carries business.

• Example: Plaintiff is residing in Delhi and the alleged infringer is in Chennai, the Plaintiff could sue the latter for copyright /trademark infringement in Delhi.

• In some cases the boundaries are stretched and availability of goods online or accessibility of goods online is often cited to bring the actions before a particular court.

Forum Shopping in India(contd.)

Case Law:

Banyan Tree Private Holding vs.

Murali Krishna Reddy

Case Law: (contd.)

• Misuse of Trade mark/brand name ‘Banyan Tree” adopted and used by BTH (Plaintiff) since 1994

• Use of the name “Banyan Tree Retreat” by Murali Krishna Reddy is an attempt to pass of its business and services as those of the plaintiff.

• The suit for passing off was filed at Delhi High Court whereas neither party was based in Delhi.

Case Law: (contd.)

• BTH is based in Singapore whereas defendant is based in Hyderabad

• It was alleged that the defendant advertised services through this website.

• BTH invoked the jurisdiction of the Delhi High Court on the basis that the defendant’s website that is accessible in Delhi and the defendant advertised services through this website.

• Court held that the mere posting of an advertisement by the defendant depicting its mark on a passive website cannot be the basis for invoking the jurisdiction of the court.

Conclusion

• Forum shopping may not always be the most fruitful plan of action.

• There are various laws which discourage forum shopping and one has to examine whether the potential advantages really outweigh the disadvantages.

• The pros and cons of a particular course of action can only be accomplished by a careful legal comparative analysis and evaluation.

Forum Shopping

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