THE REVELATION: ANTI-ANTI SUIT INJUNCTIONS
“Law is an aspiration for change and the answer one gets are based on how the discourse is framed.”
–Justice D Y Chandrachud
After Covid19, the business conglomerates and companies are expanding their global outreach in multiple nations and when the expansion of business is rapid, the issues/conflicts of any nature are bound to happen. Hence, it is imperative for any country today, to provide a strong and robust justice delivery system that provides an assurance of FOREIGN ENTITIES to conduct their business in their countries with a hope that the justice shall be served. Hence with rapid expansion and globalization, scope for law suits involving foreign courts and cases in relation of Intellectual Property have increased exponentially. In this scenario, Anti-suit and anti-enforcement injunctions are gaining popularity around the world, including India. Recently, the first case of Anti-anti-suit injunction given by Delhi High Court in India. To understand this concept, we have to first understand the concept of anti-suit injunction and its relation to Litigation and Intellectual property.
ANTI-SUIT INJUNCTIONS AND LITIGATION:
Anti-suit injunctions are explained as- When a court restrains a party to a suit/ proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction. An anti-suit injunction order is issued against a party in personam, preventing them from filing a lawsuit or continuing with one that has already been filed. This injunction can be granted in both domestic and international court proceedings. However, having regard to the rule of comity or “Comity of Courts” (the principle in accordance with which the courts of one state or jurisdiction gives effect to the laws and decision of another, not as a matter of obligation but out of deference and respect), the power of giving anti-suit-injunctions will be exercised sparingly because such an injunction though directed against the person, in effect causes interference in the exercise of jurisdiction by another court as laid down by Hon’ble High Court in the case of Modi Entertainment Network & Anr vs W.S.G. Cricket Pte. Ltd.
Anti-suit injunctions in India are divided into two types: those that prohibit contractual breaches and those that prevent non-contractual breaches. When granting an anti-suit injunction to avoid a contractual breach, the following factors must be taken into account:
- The court must have jurisdiction over the party against whom an anti-suit injunction is granted;
- if the proceedings have progressed to the point where it is not equitable to grant an anti-suit injunction, the court will dismiss the application;
- the court can grant an anti-suit injunction only in respect of a valid agreement;
- normally, the court will give effect to the parties’ intentions as expressed in the agreement entered into by the parties.
ANTI SUIT INJUNCTION IN IP CASES:
Anti-suit injunctions are typically sought, in cases involving arbitration or family law. However, in recent years, courts have begun to grant anti-suit injunctions in cases involving intellectual property. The topic addressed in this regards, is explained by some cases.
In the case of Independent News Service Pvt Ltd v. India Broadcast Live LLC & Ors, the Hon’ble Delhi High Court addressed the question of passing off of the plaintiff’s trade mark using domain names registered by the defendants in the India TV case. The Delhi High Court found that the defendants were amenable to the court’s personal jurisdiction and had a sufficient link with the court’s jurisdiction based on established standards relating to anti-suit injunctions. The forum conveniens in this case was the Delhi High Court, not the district court in Arizona. In light of this, the Delhi High Court barred the defendants from proceeding with the complaint they had filed in Arizona’s district court.
Another case of HT Media versus Brainlink International was filed. Brainlink, a New York-based company with the domain name www.hindustan.com, was infringing on HT Media’s “Hindustan” and “Hindustan Times” trademarks. Even after receiving a legal notice from the Delhi High Court ordering Brainlink to stop using the trademarks “Hindustan” and “Hindustan Times,” HT Media claimed that the company showed its malice by not only quoting USD 3 million for selling the domain name to HT Media, but also secretly filing a declaratory suit for non-infringement against HT Media in US District Court. HT Media requested an ex-parte ad-interim injunction against Brainlink as well as an anti-suit injunction to prevent Brainlink from pursuing any further legal action in the United States District Court because it was oppressive. The Delhi High Court used the principle established in the Modi Entertainment case to determine whether the forum conveniens is the Delhi High Court or the US District Court. It was finally discovered that HT Media had established a prima facie basis for an anti-suit injunction. The court barred Brainlink from continuing with the lawsuit in United States.
ANTI-ANTI SUIT INJUNCTIONS – A Step ahead of Anti Suit Injunction:
An anti-anti-suit injunction is effectively an injunction restraining a court, where a proceeding in the nature of an anti-suit injunction is pending and/or where orders of anti-suit injunction have been passed, from continuing with such a proceeding. Let us understand this with the first ever case of anti-anti-suit injunction where US and Paris courts were involved. The first anti-anti-suit injunction was issued in a dispute between Lenovo and Motorola/IPCom over the enforcement of Fair Reasonable and Non-Discriminatory (FRAND) terms for mobile patent grants. In this case, the US courts issued an anti-suit injunction against Lenovo, but the Paris courts issued an anti-anti-suit injunction against Motorola/IPCom, stopping the US courts from proceeding any further. German and English courts have both issued similar anti-antisuit injunctions in past.
Now in India, in the case of Interdigital Technology Corporation and Others vs. Xiaomi Corporation, the Delhi High Court issued India’s first ever interim anti-anti-suit injunction (AASI). In the Xiaomi Case, the defendant-Xiaomi was successful in securing a global anti-suit injunction against the plaintiff from the Wuhan Intermediate People’s Court (Wuhan Court) before the Delhi High Court.
The plaintiff argued before the Delhi High Court that the anti-anti-suit injunction was required to do complete justice because the subject matter of the proceedings in the suit before the Delhi High Court and the suit before the Wuhan Court were different, and if the injunction granted by the Wuhan Court was allowed to remain in place, not only would the plaintiff be barred from prosecuting the proceedings before the Delhi High Court, but no court in the world would be able to do so. The Delhi High Court stated that the principles for granting an anti-anti-suit injunction were similar to those for granting an anti-suit injunction. After referring to the decisions of other courts in jurisdictions different countries on the said point, the Delhi High Court first stated that it had personal jurisdiction over the defendants-Xiaomi. The Delhi High Court granted a global injunction in favour of the plaintiff and against the defendants only after recognizing its ‘personal jurisdiction’ over the defendants, preventing the defendants from pursuing the anti-suit injunction granted by the Wuhan Court.
KEY TAKEAWYAYS FROM THE ABOVE JUDGEMENTS:
- It is totally impermissible for a Court in one sovereign jurisdiction to injunct the party before it from pursuing its cause against infringement of its intellectual property before another sovereign jurisdiction, where such latter jurisdiction is the only forum competent to adjudicate the claim of infringement, save and except where continuation of the infringement proceedings is vexatious or oppressive to the proceedings pending before the former, injuncting, court.
- The right of the citizen, in this country, to legal redressal to ventilate his legitimate rights, is hallowed, sacred, and fundamental.
- It is a sanctified and preambular constitutional goal, and derives sustenance from the most sublime of our fundamental rights, including those consecrated by Articles 14 and 21. It is an inviolable and inalienable facet of access to justice.
- The right to obtain civil redress is “the very essence of civil liberty”.
- Our Constitution guarantees “justice, social economic and political” to every citizen. This guarantee cannot be sacrificed at the altar of comity.
In recent times, as global approach of companies is increasing, there are more chances of parties filing frivolous, vexatious and oppressive law suits, as happened in Interdigital vs. Xiaomi, to prevent themselves from adjudication in Indian Courts. The Delhi High Court through granting an Anti-Anti-Suit Injunction in Interdigital vs. Xiaomi has set a new benchmark for Indian Jurisprudence. It should be a welcome step for Indian litigants as this revelation has set a new tone of precedents for Indian courts. But as mentioned previously by High court that this power should be used sparingly and in matters where the refusal of injunction may result in palpable and gross injustice in the meanest sense. Hence, it will most definitely contribute significantly to Indian as well as international jurisprudence.
The blog has been written by Mr. Pratik Chaudhari (Partner – Litigation) and assisted by Ms. Prerna Khatri (Intern).
- Modi Entertainment Network & Anr vs W.S.G.Cricket Pte. Ltd on 21 January, 2003. Appeal (civil) 422 of 2003.
- Interdigital Technology … vs Xiaomi Corporation & Ors. on 3 May, 2021. I.A. 8772/2020 in + CS(COMM) 295/2020
- (India Tv) Independent News … vs India Broadcast Live LLC And Ors. on 10 July, 2007. 2007 (35) PTC 177 Del
- HT Media Limited & Anr. vs Brainlink International, Inc. & … on 17 December, 2021. CS(COMM) 119/2020
- Lenovo (United States) Inc. and Motorola Mobility, LLC v. IPCom GmbH & Co., KG.