India: Minimum Contact Theory

Last Updated: 11 September 2013

Article by Himanshu Sharma and Ritiraj 1


In Personam Jurisdiction refers to the power which a court has over the defendant himself in contrast to the court's power over the defendant's interest in property (Quasi in rem) or power over the property itself (in rem)2. A court that lacks personal jurisdiction is without power to issue an in personam judgment i.e. judgment against the individual or corporation3. The Minimum Contact theory comes into picture when either or both of the parties seem to be from outside the Court's territorial jurisdiction. It is used as a method to establish the Court's jurisdiction over the parties to a case by determining their quality and intensity of their contact i.e. services or transactions with the Forum State4. In India, it has been incorporated by giving a liberal interpretation to Section 20(c) of the Code of Civil Procedure, to expand jurisdiction especially in cases of trademark infringement, passing off of trademarks, domain name infringements.

Origin of the theory

In America, concept of personal jurisdiction and fairness and due process were not on the same page traditionally. Non-residents could be brought to court while they were in State, however fortuitous or brief presence it might be5. With the International Shoe v. Washington6, modern jurisdictional analysis stepped in, imbibing Fair play and substantial justice in exercising of personal jurisdiction by courts. Incorporating the spirit of the Fourth and Fifteenth Amendments to the United States Constitution that talk about substantive due process and procedural due process, the core meaning of due process of law is to secure the principle of legality by ensuring that executive and judicial deprivations are grounded in valid legal authority7. In this case, a suit to recover payments due to the unemployment fund by a Corporation which did not even have an office or shop in the State was questioned on the basis of personal jurisdiction. Service of process upon one of the corporation's salesmen within the State, and notice being sent by registered mail to the corporation at its home office was challenged as not satisfying the requirements of due process8. The Supreme Court of Washington was of opinion that the regular and systematic solicitation of orders in the state by appellant's salesmen, resulting in a continuous flow of appellant's product into the state, was sufficient to constitute doing business in the state so as to make appellant amenable to suit in its courts.

Earlier the parties' presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him9. Later the position developed that due process required only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice"10. It was held supra, that, to the extent that a corporation exercises the privilege of conducting activities within the State, it enjoys the benefits and protection of laws of the State and obligations arising out of these which require the Corporation to respond to a suit brought to enforce them can, in most instances, will be held binding on it. Hence, the Corporation is bound by its purposeful availment in that forum.

Development of the theory in the International arena

Shoe (Supra) lay down that Courts could exercise general personal jurisdiction as well as specific personal jurisdiction, depending on the level of contact. If contact is so continuous and substantial that the subject can be sued for anything within the State, it's the former, but if the contact is only sufficient for jurisdiction over claim arising from those contracts, it's the latter11. With the development of Internet and globalization of business, businesses spread worldwide had the risk of being sued anywhere, which mandated stricter norms in determining "Purposeful Availment", also known as Sliding Scale test12. The case of Asahi Metal Industry Co. v. Superior Court13questioned if the mere awareness that a product may reach a remote jurisdiction when put in the stream of commerce was sufficient to satisfy the requirement for minimum contacts under the Due Process Clause. The courts here and in World-Wide Volkswagen Corp. v. Woodson14held that a party must do more than intentionally put goods in the stream of commerce even if it expected its products to reach the forum state. Foresight alone wasn't enough to establish personal jurisdiction over the defendant Corporations here as neither party deliberately took steps to see their products in the forum markets15. The substantial connection with the forum state necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum state16. Even after that, fair play and justice will have to be satisfied i.e. reasonableness of the party to be sued in that forum.

The cases of Cybersell Inc v. Cybersell Inc and Ors17 and Chloe v. Queen Bee of Beverly Hills, LLC18gave a three step test to exercise personal jurisdiction in matters dicey in territorial jurisdiction.

  1. The non resident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws.
  2. The claim must be one that arises out of or results from the defendant's forum related activities.
  3. Exercise of jurisdiction must be reasonable

But the case of Panavision International LP19brought out the loophole in application of existing rules of personal jurisdiction to conduct that took place in part in cyberspace - it was observed that simply registering someone else's trademark as a domain name and posting a website on the Internet is not sufficient to subject a party domiciled in one state to jurisdiction in another. Even a passive website cannot be the subject of a Court's personal jurisdiction, until it harms the other. The Minimum Contact Theory wasn't sufficient to determine such cases wherein the level of contact or interactivity of the domains couldn't be defined. This brought in the aspect of 'active intention of the party to establish contact with the forum state, economically benefit itself and harm the interests of the plaintiff by targeting the latter's market. It led to the development of Calder test20 (effect test) i.e. exercising jurisdiction by objective territoriality.

In the case of Burger King Corp v. Rudzewicz21, it was held that the court could exercise jurisdiction over a nonresident despite his physical absence, where an alleged injury arises out of or relates to actions by the Defendant himself that are "purposefully directed towards residents of the forum State". It was also held that "purposeful availment" would not result from "random" or "fortuitous" contacts by the defendant in the forum state, the plaintiff was required to show that such contacts resulted from the "actions by the defendant himself that created a substantial connection with the forum State" i.e. he must have engaged in "significant activities" within the forum state or have created "continuing obligations" between himself and residents of the forum state.

Summarizing the position in the US, to establish personal jurisdiction of the Court, even when a longarm statute existed and Effects test proved, plaintiff would have to show that the defendant purposefully availed of jurisdiction of the forum state by "specifically targeting" customers within the forum state.

In England, until the passive display is advertisement, it wouldn't be viewed as targeting. Countries like Australia and Canada are supported by their long-arm statute, which though decreases the importance of Minimum Contact theory, doesn't diminish the importance of due process requirements, including reasonability. Reasonableness of exercise of jurisdiction can be gauged by considering the following measures- the burden on the defendant of coming for a trial in that forum state, the interests of the forum State, the plaintiffs interest in obtaining relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies and the shared interest of the several States in furthering fundamental substantive social policies

Use in India

As the businesses in India are extending their horizons globally hence the use of Minimum Contact Theory was used to expand jurisdiction of Courts in cases trademark infringement through domain name and when some non-residents are involved. In the case of (India TV) Independent News Service Pvt Limited Vs. India Broadcast Live LLC and Ors22 and Banyan Tree Holding (P) Limited vs. A. Murali Krishna Reddy and Anr.23, the foreign precedents were rushed to provide the justification for exercising jurisdiction over the defendants. As jurisdiction in our courts is defined by territorial and pecuniary jurisdiction, a liberal interpretation of Section 20(c) of Code of Civil Procedure by the Courts allowed this.

In India TV case, the court established minimum contact of the defendant with the forum state to exercise jurisdiction. It was found out that the website could not only be accessed from but also subscribed to from Delhi and it was thus contended that the defendant was carrying on business with deliberative effort for profit or gain from India. As the plaintiff was a corporation based in India in the same field, its economic interests were being hampered. Hence, according to the Cybersell case, court held that defendant in this case had directed his activity toward the forum state i.e. Delhi and held defendant liable for passing off.

In Banyan Tree case, it was held that creating a site, was like placing a product into the stream of commerce, which may be felt nationwide or even worldwide but, without more, it was not an act purposefully directed towards the forum state". Purposeful Availment means that it has to be actively intentional24. The Courts in order to ensure that this method of exercising jurisdiction didn't violate the codified method of territorial jurisdiction, the Courts, in both these cases used Section 20(c) of the Code of Civil Procedure, i.e. the case can be instituted where the cause of action arises. Courts held that even if neither the plaintiff, nor the defendant were within the local jurisdiction of the Court where the case was instituted, but it was proved that the domains of the defendant were accessed by the people belonging to the plaintiff's market under the impression of the defendant being the plaintiff, because of similar trademarks or domain names, then cause of action will deemed to have arisen in that market and the case could be instituted there. Mere avoidance to restrict the access of their sites outside the defendant's local jurisdiction could not be an excuse if people would take services from it, thus harming the other similar Corporation.


Thus, from mere establishment of contact with the forum state, the theory gradually required deliberate direction from the defendant and harm to the plaintiff in order to be applicable in modern times. The difference in Indian use of this theory and International use is that here, it is restricted by territorial jurisdiction and cause of action needs to arise at the place where case is instituted. Whereas, international use of the theory shows how objective territorial application of jurisdiction without the restrictions of territorial application helps in extending jurisdiction of courts to a wide degree, thus serving the interests of justice in the society.

Restriction of territorial jurisdiction being placed by codified laws, further expansion of personal jurisdiction beyond those lines require appropriate amendments in Section 19 and 20 of the Code of Civil Procedure to incorporate the Objective territoriality principle, i.e. the Effects test. This is so because judicial precedents of lower courts and foreign courts do not have binding authority on the Indian Courts and considering the growing involvement of non-residents in cases of trademark infringement, passing off and domain names owed to the ever-increasing horizon of globalization of businesses and internet connectivity, we need definitive law in this matter. Continued dependence on case laws and International law principles, without incorporation in domestic law will keep the law regarding this matter vulnerable to dismissal by the higher courts and leave unprotected the valid interests of the members of the society.


1 IIIrd year student NLU Delhi

2 Black's Law Dictionary, (6th Ed.) p.790

3 India TV) Independent News Service Pvt. Limited V. India Broadcast Live LLC and Ors., (2007)ILR 2Delhi1231

4 Forum State is the State where the case has been instituted

5 Burnham v. Superior Court, 495 U.S. 604 (1990)

6 326 U.S. 310, 1945

7 accessed on 21st July, 2013

8 accessed on 20th of July, 2013

9 Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 733, 1878

10 Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463

11 accessed on 21st July, 2013

12 Zippo Mfg. Co. v. Zippo Dot Com, Inc. 952 F.Supp. 1119

13 480 U.S. 102 (1987)

14 444 U.S. 286 (1980)

15 , accessed on 21st of July, 2013

16 accessed on 21st of July, 2013.

17 Case No. 96-17087 D.C. No. CV-96-0089-EHC

18 616 F.3d 158 (2nd Cir. 2010)

19 141 F.3d 1316

20 Calder v. Jones 465 U.S. 783 (1984)

21 471 U.S. 462

22 (2007)ILR 2Delhi1231

23 2010(42)PTC361(Del)

24 Ballard v. Savage 65 F.3d 1495 (1995)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions