Delhi High Court
Microsoft Corporation & Anr vs Deepak & Anr on 23 February, 2015
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :23.02.2015
+ CS(OS) 314/2012
MICROSOFT CORPORATION & ANR
..... Plaintiffs
Through Ms. Jaya Negi and Mr. Ravin,
Advs.
versus
DEEPAK & ANR
..... Defendants
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. Present suit has been filed by the plaintiffs (Microsoft
Corporation) against the defendants seeking permanent injunction,
infringement of copyright, delivery up, rendition of accounts, damages,
etc.
2. Plaintiff No. 1 is Microsoft Corporation, a company registered
under the laws of State of Washington, USA. Plaintiff No. 2 Microsoft
Corporation India Pvt. Ltd is wholly owned subsidiary of plaintiff No. 1.
It has its registered office at Nehru Place. Plaintiff No. 2 was set up in
1989 to provide marketing, promotion, antipiracy awareness campaigns
and action and channel development support to plaintiff No. 1/its
affiliates. The products of plaintiff No. 1 are distributed in New Delhi
through various authorized distributors.
3. Plaintiff No.1 is the biggest software publisher for personal and
business computing in the world. It is engaged in the development,
manufacture, licensing and support of a range of software products for
various computing devices. Plaintiff No. 1 is also manufacturing a large
number of computer peripherals (hardware). It has built up its reputation
for technological expertise in hardware over the years by building a
series of technological devices.
4. The software programs developed and marketed by the plaintiffs
is a 'computer program' within the meaning of Section 2 (ffc) of the
Copyright Act, 1957. Computer programs of the Plaintiff are 'works' as
per Section 2(o) of the Act and are registered in USA.
5. Defendant No. 2 M/s Divya Computer, located at Mangaldas
House, Lamington Road, Mumbai is a business entity engaged in
marketing and selling of computer hardware including branded
computers and peripherals. Defendant No.1 is its proprietor. In January,
2012, the plaintiffs received information and the investigations also
revealed that the defendants were infringing the plaintiffs' copyright and
other intellectual property rights by carrying on the business of
unauthorized Hard Disk Loading of the Plaintiffs' software programs on
to the branded computers sold by them to their customers. The said
unlicensed software programs were not accompanied by any original
Certificate of Authenticity (COA) label.
6. On 08.02.2012, an ex-parte ad-interim order had been obtained in
favour of the plaintiffs and the defendants, their directors, officers,
agents etc were restrained from using, copying, selling, distributing,
counterfeited/ licensed software of plaintiff No.1 including Microsoft
Office 2010, Microsoft Windows 7 and their various versions or in any
other manner infringing the copyright of the plaintiffs in their computer
programs. Vide order dated 08.02.2012, a Local Commissioner had also
been appointed to visit the shop of the defendants at M/s Divya
Computers, Shop No. 1, ground floor, building No. 395, Mangaldas
House, Lamington Road, Mumbai.
7. The Local Commissioner has since submitted her report.
8. The Local Commissioner has reported that the defendants on
being asked to produce the license of their software programs stated
that it did not have any license thereby affirming the stand of the
plaintiffs that the defendants were selling and distributing the computer
programs which were the pirated version of the plaintiffs' software
programs.
9. The defendants were proceeded ex-parte vide order dated
09.01.2013. Ex-parte affidavit by way of evidence of PW-1 Col. J.K.
Sharma and PW-2 Kishore Anand, Chartered Accountants of the
plaintiffs company has been perused. The plaintiffs have been able to
establish their case. They have been able to establish that the defendants
were pirating the plaintiffs' software programs by uploading them in the
computers which were being sold by them to their customers without
license and permission of the plaintiff.
10. The plaintiffs are accordingly entitled to the decree as prayed for.
The defendants, their directors, officers, servants and agents are
accordingly restrained from using, copying, selling, offering for sale,
distributing, unauthorized Hard Disk Loading, issuing to the public,
counterfeited/unlicensed versions of Microsoft Office, 2010, Microsoft
Windows 7 and any other infringing material belonging to the Plaintiffs.
11. Learned counsel for the plaintiffs has made a claim for punitive
damages. Submission being that some kind of deterrent should be
imposed upon such erring defendants who are flagrantly disobeying the
orders of the Court and in spite of interim injunction, continue to
infringe the products of the plaintiffs.
12. In 2006 (33) PTC 683 (Del) Asian Paints (India) Ltd. Vs. Balaji
Paints and Chemicals and Ors. where the defendant was ex parte; in a
claim for damages a Bench of this Court had granted damages to the
plaintiff including costs of the suit. This Court is inclined to follow the
ratio of the said judgment which while granting damages in this context
had noted as under:
"The result of the actions of defendants is that plaintiffs, instead
of putting its energy for expansion of its business and sale of products,
has to use its resources to be spread over a number of litigations to
bring to book the offending traders in the market."
13. The plaintiffs are accordingly entitled to damages quantified at
Rs.1 lac in their favour and against the defendants on account of
infringement of the aforenoted copyright. Cost of the suit also be
granted in favour of the plaintiffs. They are also entitled to the delivery
of the impugned (finished and unfinished) material lying with the
defendants which is violative of the copyright of the plaintiffs.
14. Suit disposed of in the above terms.
INDERMEET KAUR, J
FEBRUARY 23, 2015
A
