Microsoft Corporation & Anr. vs Nimesh
2012 Latest Caselaw 3268 Del

*         HIGH COURT OF DELHI: NEW DELHI
                                Order decided on: 16.05.2012
                 CS(OS) No. 1624 of 2010

Microsoft Corporation & Anr.                   ..... Plaintiffs
                  Through: Mr. Pravin Anand, Adv. with
                             Mr. Shantanu Sahay &
                             Mr. Nischal Anand, Advs.

                           Versus
Nimesh.                                                   ..... Defendant
                      Through:   Defendant is ex-parte.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The plaintiffs have filed the present suit for permanent injunction restraining the infringement of copyrights, delivery up, rendition of accounts, damages, etc. against the defendant. The plaintiff No.1, is a company organized and existing under the laws of the State of Washington, USA, plaintiff No.2, Microsoft Corporation India Private Limited is the wholly owned marketing subsidiary of the plaintiff No.1, located in New Delhi. The plaintiffs are engaged in the business of developing, manufacturing, licensing and support of a range of software products for various computing devices. The software products of the plaintiffs include operating systems for servers, personal computers, intelligent devices etc.

2. It is averred in the plaint that the software programs developed and marketed by the plaintiffs are "computer program" within the meaning of Section 2 (ffc) of the Copyright Act, 1957 and is included

in the definition of literary work as per Section 2 (o) of the said Act. The plaintiff's computer programs are "works" that were first published in the USA and are also registered in the USA. The said programs have been created for the plaintiff No.1 by its employees and under the US Copyright Law, US Code Title 17, Section 201(b), the copyright in a work created by an employee belongs to the employer under the „Work made for Hire‟ doctrine. It is stated by the plaintiffs that both the computer program, as well as the supplementary User Instructions and Manuals, are „original literary works‟ as contemplated under Section 2 (o) and Section 13 (1) (a) of the Copyright Act, 1957 and plaintiff No.1is the owner of the said copyright.

3. It stated in the plaint that the rights of the authors of member countries of the Berne and Universal Copyright Conventions are protected under Indian copyright law and India and USA are signatories to both the Universal Copyright Convention as well as the Berne Convention. As the plaintiffs‟ works are created by authors of the member countries and originate from and are first published in the said member countries therefore, in India, the works of plaintiff No.1 are protected under Section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999. Plaintiff No.1 is the owner of the copyright in the aforesaid literary works within the meaning of Section 17 of the Copyright Act, 1957 and therefore, is entitled to all exclusive rights flowing from such ownership as set out in Section 14 of the Copyright Act, 1957. The plaintiffs have been vigilant in

protecting their copyrights and from time to time got several infringing parties prosecuted in India.

4. It is averred in the plaint that in the month of July 2010, the plaintiffs came to know that the defendant was infringing plaintiffs‟ copyrights and other intellectual property rights by loading the Hard Disk of the plaintiffs‟ software programs on to the branded computers which are sold by them to their customers, without taking any authorization from the plaintiffs to do so. Thus, the plaintiffs sent an independent investigator namely, Mr. Shubham Jain, to the outlet of the defendant to ascertain if the defendant was actually involved in such infringing activities. Accordingly, on 27.07.2010 the said investigator visited the premises of defendant at M/s @Gizgahertz, 350, Atlantic House, Ground Floor, Lamington Road, Next to Police Station, Grant Road (E) Mumbai-400 007, where he met one Mr. Vikash, who introduced himself as the sales executive at M/s @Gizgahertz and informed that Mr. Nimesh is its owner. Thereafter, the said investigator placed an order for a laptop. On the next day, the said investigator was given the delivery of the laptop booked by him on the previous day which was pre loaded with the unlicensed software of the plaintiff company like MICROOFT WINDOWS, MICROSOST OFFICE etc. On 02.08.2010, the independent investigator delivered the said laptop to the plaintiffs‟ representative. A detailed affidavit of the said investigator, Mr. Shubham Jain, along with annexures has been filed along with the plaint.

5. On 04.08.2009, plaintiffs‟ technical Expert Ms. Urmila Sahu, photographed the computer box and thereafter inspected the laptop

purchased from the defendant and took printouts (screen shots) of the directory of its hard disk, which clearly evidenced the fact that the following software programs of the plaintiffs were present on the computer sold by the defendant:

OPERATING SYSTEM:

Microsoft Windows 7 Eternity, Registered to : Owner-PC bearing Registration No.00426-292-0000007-85917.

Application Software:

Microsoft Office 2007 (Access, Excel, Groove, Infopath, OneNote, Outlook, PowerPoint, Publisher, Word), licensed to owner having product I.D. No.89388-707-1528066-65055.

6. As per the technical expert, plaintiffs‟ programmes contained on the hard disk of the laptop computer system were unlicensed and/or pirated versions of the plaintiffs‟ software. The said unlicensed software programs were not accompanied by any original Certificate of Authenticity (COA) label, Holographic Software Installation CD/DVD‟s, User Instruction Manual/Booklet and Genuine copy of End User License Agreement (EULA). A detailed affidavit of the said technical expert, Ms. Urmila Sahu, has also been filed along with the plaint.

7. On comparing the software being sold by the defendant, with the software originating from the plaintiffs, it was found that the software supplied by the defendant were pirated versions of the original computer programs of the plaintiffs. The following, inter alia, were the distinguishing features found:

(i) The software supplied by the defendant were not

accompanied by the accompanying Certificate of Authenticity (COA) label.

(ii) The defendant did not provide any Holographic Software Installation CD/DVDs (whether recovery or backup) along with the software program.

(iii) The software supplied by the defendant did not have any End User License Agreement (EULA).

(iv) The software supplied by the defendant did not have any User Instructions Manual/Booklet.

(v) The software supplied by the defendant were free of cost and the cost of the computer was not enough to cover the price of the genuine software.

8. Feeling aggrieved by the infringing activities of the defendant, the plaintiffs filed the present suit.

9. On 09.08.2010, the summons in the suit were issued to the defendant in the suit and notices were issued in the interim application and an ex-parte ad-interim injunction was passed in favour of the plaintiffs and against the defendant restraining him from copying/reproducing, hard-disk loading on computers, selling, offering for sale, distributing, issuing to the public, pirated/counterfeit/unlicensed versions of Windows Vista, Microsoft Office 2007 and any other software of the plaintiffs, in any manner, so as to infringe the plaintiffs‟ copyright in the said programs and the related manuals. A Local Commissioner was also appointed for inspection of the business premises of the defendant. In report of the Local Commissioner dated 15.09.2010, also it is stated that when the Local Commissioner along with the technical representative

visited the business premises of the defendant they noticed the defendant selling a laptop, and when the technical representative examined the said laptop, it was found to be loaded with the unlicensed software of the plaintiffs. The said report of the Local Commissioner dated 15.09.2010, is also filed.

10. Despite service of summons to the defendant no one appeared on behalf of the defendant. Therefore, by order dated 29.08.2009, the defendant was proceeded ex parte.

11. The plaintiffs filed their ex-parte evidence by way of affidavit Ex.PW1/A of PW-1, Mr. Achhutan Sreekumar who proved the following documents:

(i) Ex.P-1- Photocopy of the Letter of Authority issued in favour Mr. Achuthan Sreekumar by the plaintiff No.1.

(ii) Ex.P-2- Photocopy of the Letter of Authority issued in favour Mr. Achuthan Sreekumar by the plaintiff No.2.

(iii) Ex.P-3- Photocopy of the Court Certified Copy of Original Copyright Registration Certificate for Microsoft Windows 2000 Professional.

(iv) Ex.P-4- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office 2000 Professional.

(v) Ex.P-5- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Word 2000.

(vi) Ex.P-6- Photocopy of Court Certified Copy of Original Copyright Registration Certificate for Microsoft Windows 98.

(vii) Ex.P-7- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office 97 (Professional Edition).

(viii) Ex.P-8- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Visual Studio 6.0.

(ix) Ex.P-9- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Visual Basic, Version 6.0.

(x) Ex.P-10- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Visual C++ 6.0.

(xi) Ex.P-11- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office XP Professional.

(xii) Ex.P-12- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Windows XP Professional.

(xiii) Ex.P-13- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Professional Edition 2003.

(xiv) Ex.P-14- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Access 2007.

(xv) Ex.P-15- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Excel 2007.

(xvi) Ex.P-16- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Groove 2007.

(xvii) Ex.P-17- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office One Note.

(xviii) Ex.P-18- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Outlook 2007.

(xix) Ex.P-19- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Power Point 2007.

(xx) Ex.P-20- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Project Professional 2007.

(xxi) Ex.P-21- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Share Point Designer 2007.

(xxii) Ex.P-22- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Visio Professional 2007.

(xxiii) Ex.P-23- Court Certified Copy of Original Copyright Registration Certificate for Microsoft Office Word 2007.

(xxiv) Ex.P-24- Court Certified Copy of Original Copyright Registration Certificate for Windows Vista Ultimate.

12. The plaintiffs also filed an additional affidavit Ex-PW2/A of Mr. B.K. Anand a Charted Accountant, for computation of damages

who has shown computation of damages to the tune of Rs.8,16000/-.

13. I have heard the learned counsel for the plaintiffs and have also gone through the affidavits in ex parte evidence as well as the documents placed on the record. In their evidence, the plaintiffs have proved the facts stated in the plaint and have also exhibited the relevant documents in support of their case. The evidence filed by the plaintiffs has gone unrebutted as no cross-examination of the plaintiffs‟ witness was carried out. Therefore, the statements made by the plaintiffs are accepted as correct deposition.

14. Under these facts and circumstances, the plaintiffs are entitled to a decree for a permanent injunction. Therefore, the suit of the plaintiffs is decreed in terms of paragraph-39 (a) & (b) of the plaint. As far as the relief of damages and rendition of accounts is concerned, I am of the view that in view of the earlier orders passed in favour of the plaintiffs, they are only entitled to the damages to the tune of Rs.2 lac in their favour. The plaintiffs are also entitled to the cost of the suit. Ordered accordingly.

15. Decree be drawn accordingly.

16. The suit and the pending applications are disposed of.

MANMOHAN SINGH, J.

MAY 16, 2012