Adobe Systems Inc & Ors vs Mr K. Kannan & Another
2009 Latest Caselaw 937 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS) 365/2000


%23.03.2009                    Date of decision: 23rd March, 2009

ADOBE SYSTEMS INC & ORS                         .......       Plaintiffs
                           Through: Mr Praveen Anand, Advocate

                                  Versus

MR K. KANNAN & ANOTHER                             ....... Defendants
                           Through: Ex parte.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?       No

2.     To be referred to the reporter or not?             No

3.     Whether the judgment should be reported            No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. M/s Adobe Systems Inc, USA , M/s Autodesk Inc, USA

and Microsoft Corporation instituted the present suit,

inter alia, on the ground that the defendant No.2 company

and of which the defendant No.1 was the marketing

executive is engaged in the business of, inter alia, hard

disk loading i.e., pre loading various pirated and

unlicensed software of the plaintiff companies free of costs

on the computers that were being assembled and sold by

them and as an incentive to customers to purchase the said

machines from them. Vide ex parte order dated 21st

February, 2000 the defendants were restrained from

copying, selling, offering for sale, distributing, issuing to

the public pirated/counterfeit/unlicensed version of the

plaintiffs' software as listed in the plaint.

2. The said order continues till date. The defendants

appeared and filed their written statements and on 21st

February, 2006 the following issues were framed:

1. Whether this court had the territorial jurisdiction to entertain the matter?

2. Whether the plaintiff is entitled to club the cause of action arising under the Trademarks Act 1955 and the Copyright Act 1956 together the for purposes of filing the present suit?

3. Whether a purported single transaction carried out by a decoy could be the sole basis for the cause of action against the defendants?

4. Whether the present suit is maintainable keeping in view that the norms laid down for such decoy suits have not been followed?

5. Whether the fact of belated examination of the computer system by the technical expert, long after it was delivered to him vitiates the evidence?

6. Whether the attorney acting on behalf of the plaintiff may perform dual role of counsel and constituted attorney for the plaintiff?

7. Whether the plaintiffs own the copyrights and trademarks which are the subject matter of the present suit?

8. Whether the defendants have infringed the copyrights of the plaintiffs as subsisting in their software Programmes?

9. Whether the defendants have infringed the registered Trade Marks of the plaintiffs?

10. Whether the defendants have passed off counterfeit/unlicensed versions of the plaintiffs' software as genuine goods of the plaintiffs'

software as genuine goods of the plaintiffs as alleged in the plaint?

11. Whether the plaintiffs are entitled to the relief as prayed for in the plaint?

3. The defendants however thereafter stopped

appearing and were proceeded against ex parte on 2nd

November, 2007 and remain ex parte. The plaintiffs have

led ex parte evidence by filing affidavits by way of

examination-in-chief of its constituted attorney Mr Anand

Banerjee, of Mr Rajesh Satwah who had on behalf of the

plaintiffs visited the premises of the defendants at Chennai

and of a Chartered Accountant Mr Sanjeev Sharma, limited

to the aspect of damages. The evidence remains

unrebutted.

4. The defendants being ex parte, it is not necessary to

deal with the issues. Mr Anand Banerjee witness of the

plaintiffs (and who has been informed to be now no more)

has proved the authorization in his favour from each of the

plaintiffs for institution of the suit and for signing and

verification of the plaint as exhibits P1, P2 and P3. As far

as the plea of territorial jurisdiction is concerned, the same

has been invoked under the provisions of Section 62(a) of

the Copyright Act. The witnesses of the plaintiffs have

deposed that the plaintiffs carrying on business for profit

and gain in New Delhi through their various subsidiaries,

distributors and stockists and particulars of whom have

been pleaded as well as deposed. As far as the plea of the

defendants relating to clubbing of the cause of action, the

witness of the plaintiffs has deposed that the right of relief

against the defendants has arisen to the plaintiffs out of

the same act or transaction of the defendants and if

separate suits were instituted against the defendants

common questions of law and fact would arise and there

would be multiplicity of proceedings. It is further in

evidence that the defendants are reproducing the

copyright of the plaintiffs by electronic means and storing

pirated computer programs of each of the plaintiffs on the

common hard disk, CD or floppy disk and by a singular act

or transaction and which floppy disk is then loaded on the

computer sold by the defendants. The witness of the

plaintiffs has further deposed about the right of the

plaintiffs in the software/computer programmes and which,

in any, case, has not been seriously controverted in the

written statement filed by the defendants also. The

contention of the defendants was that they were not

indulging in the acts complained of by the plaintiffs. The

copyright registrations in favour of the plaintiffs have been

proved as Exhibit P4 to P9 and the trademark certificates

as Exhibit P10 to P17.

5. Mr Rajesh Satwah witness of the plaintiff has deposed

about visiting the premises of the defendants after

acquiring knowledge of the infringing activities of the

defendants and of the defendants having loaded

pirated/unlicensed software of the plaintiffs.

6. As aforesaid the defendants had also not claimed any

rights in the software / copyright/trademark of the

plaintiffs and had merely denied the infringing actions.

The defendants having failed to cross examine the

witnesses of the plaintiffs and / or to lead any evidence of

their own, evidence of the plaintiff is to be believed. The

case of infringement of copyright and trademark is made

out.

7. The plaintiffs besides the said relief have also claimed

the relief of rendition of accounts. Mr Sanjeev Sharma

witness of the plaintiffs has deposed that from the sales tax

number of the defendants it is clear that the defendants

have been carrying on business at least since 14th May,

1999. As aforesaid the injunction order was issued against

the defendants on 21st February, 2000. The witness of the

plaintiffs has further deposed about the average market

price of the licensed products of the plaintiffs and which

were being illegally loaded by the defendants. The witness

of the plaintiffs has further deposed that the defendants

would have sales of at least a minimum of 5 computers a

month and for sales for a period of four months deposed

that the damages suffered by the plaintiffs would be in the

sum of Rs 14 lacs.

8. This court in Microsoft Corporation Vs Yogesh

Papat 2005(30) PTC 245 and in Time Incorporate Vs

Lokesh Srivastava 2005 (30) PTC 3 has held that in such

cases there is no purpose in ordering accounts against

persons dealing in piracy, no accounts are kept of such

sales. It has further been held that merely because the

defendants chose not to contest the suit the defendants

cannot escape the liability for damages. In fact this court

has also taken judicial notice of the sales at least in Delhi

by such vendors. I do not find any reason to disbelieve the

witness of the plaintiffs regarding damages and find the

plaintiffs entitled to a decree for Rs 14 lacs.

9. The suit of the plaintiffs is thus decreed for the reliefs

of injunction in terms of prayer paragraphs 61 (a), (b) and

(c) of the amended plaint dated 8th October, 2004 as well

as for recovery of damages in the sum of Rs 14 lacs. The

plaintiffs shall also be entitled to costs of the suit from the

defendants. Counsels fee assessed at Rs. 50,000/-. The

decree sheet be drawn up accordingly.

RAJIV SAHAI ENDLAW (JUDGE) March 23, 2009 M