Delhi High Court
Microsoft Corporation vs Mr. Rajiv Uppal And Anr. on 21 December, 2000
Author: J Kapoor
Bench: J Kapoor
JUDGMENT
J.D. Kapoor, J.
S.N.2862/2000.
1. Plaint be registered Let the summons be
issued to the respondent both by ordinary process as
well as registered AD post, on filing process fee and
registered covers within one week, returnable on 17th
April , 2001 .
I.A No.13283/2000
Heard .
2. Plaintiff has been carrying on business in the field of development of computer programmes (software) and the manufacture and sale of software, pre-recorded onto compact Disks, Floppy Disks and other electronic media along with the related user manuals and instructional guides. It has subsidiary in India having its office at 70, The Great Eastern Centre, Nehru Place, New Delhi-110 019. It is alleged that the popularity of the pla i n t i f f ' s s of tw a r e an d hard ware in
India has resulted in large-scale counter feinting of hardware and piracy and illegal copying of software. On vigorous inquiry made by the agents of the plaintiff, it is revealed that large number of softwares as
detailed in para 23 of the application which are as many as 10 are being used by defendant No. 2. The above allegations' have been substantiated by way of affidavit by Mr Venugopal, Chief Executive Officer of the plaintiff company. In the past also, such acts of
piracy have come to the notice of the court in number of suits which are still pending.
3. After close perusal of the plaint, contents thereof, documents placed on record and various orders passed in other suits, I am satisfied that there is prima facie case in favour of the plaintiff and balance of convenience also in their favour and I at? also satisfied that in case of notice alone, the plaintiff will suffer irreparable loss, damage and injury .
4. In the result, ex parte ad interim injunction is passed restraining the defendants, their principal officers, directors, partners, proprietors, agents servants and all other acting for and on their behalf from directing or indirectly (i) using unlicensed software of the plaintiff or reproducing the software of the plaintiff in contravention of the terms of the End-User License Agreement(s) or infringing in any other manner the copyrights of the plaintiff in its computer programmes; (ii) infringing the plaintiff's registered trade mark MICROSOFT in Classes 9 & 16 bearing trademark registration numbers 4304498 and 4304508 respectively and (iii) passing off their
pirated software/goods/services a those of the plaintiff.
Compliance of Order XXXIX Rule 3 C.P.C. within one week.
I.A.No.13284/2000
Heard.
5. In view of the ex parte ad interim order restraining the defendant as above on the application under Order XXXIX Rules 1 & 2 C.P.C., I am satisfied that if the hard disks, compact discs and other storage media containing the infringing program of the plaintiff are not taken into custody, the defendants will erase/destroy the said programs from the memory of the computers and the compact discs/media.
6. In order to avoid the above eventuality, it is imperative that a Local. Commissioner should be appointed to visit the premises of the defendants at Next Linx India Pvt. Ltd. 94, Thunga Towers, 3rd floor, K.H.Road, Bangalore. Accordingly Mr. Manish Vashishtt, Advocate, 6 Anand Lok, New Delhi, is appointed as Local Commissioner to carry out the following acts :(i) to inspect the Hard Disks of the computers lying at the said premises and to determine if they contain the plaintiff's programs. The Local Commissioner can take the help of a technical expert to be provided by the plaintiff; (ii) to direct the defendants to provide password particulars of any computer, in order to be enables to carry out the acts specified in (i) above; (iii) to make an audit/inventory of the number of computers, computer software contained on each computer, including Product Identification numbers, other hardware and related end-user licenses, if any, and invoices reflecting the purchase of software and
hardware. Defendants are directed to provide photocopies of the aforesaid documents to the Local Commissioner. The Local Commissioner can take the assistance of the technical expert; (iv) to take the hard disks found to contain unlicensed/pirated/counterfeit versions of the plaintiff' software into custody or in the alternative to take the computer(s) into custody and released it on superdari to the defendants. It is directed that police shall offer possible assistance to the Local Commissioner in carrying out the above referred task. The fee of Local Commissioner is fixed at Rs.10,000/-. He may also be paid to and fro air fare and other misc. expenses .
