Microsoft Corporation And Anr vs Ketan And Anr
2015 Latest Caselaw 4016 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Judgment :19.05.2015

                           CS(OS) 1501/2011


MICROSOFT CORPORATION AND ANR.                           ......Plaintiffs
             Through: Ms.Krutika Vijay                  and Mr.Aasish
                      Somasi, Advocates.

                     Versus


KETAN AND ANR.                                         .......Defendants
            Through:             None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1.

The present suit has been filed by the plaintiff seeking permanent

injunction restraining infringement of copyrights, delivery up, rendition

of accounts of profits as also damages.

2. The plaint discloses that the plaintiff no.1 Microsoft Corporation

is registered in the USA. Plaintiff no.2 is the wholly owned and

subsidiary of plaintiff no.1 having its registered office at Nehru Place,

Delhi. The business activities of the company are software publishing

for personal and business accounts. The plaintiff no.1 has a worldwide

and global reputation. The software of the plaintiff includes used

operating, systems software, MISCROFOST WINDOWS (various

versions) and application software such as MICROFOST OFFICE

(various versions) and VISUAL STUDIO (various versions). Apart

from these software programs the plaintiffs also manufacture a large

range of computer peripherals (hardware). The software developed and

manufactured by the plaintiff are "computer programs" within the

meaning of Section 2(ffc) of the Copyright Act, 1957. They are

"works" and are entitled to be protected.

3. The defendant no.2 is a shop at Dr. Bhadkamkar Marg, opposite

Lamington Road Police Station, Mumbai which is engaged in marketing

and selling of computer hardware including branded computers and

peripherals. Defendant no.1 is the proprietor of defendant no.2.

4. In May, 2011 the plaintiffs received information that the

defendants were infringing the plaintiffs copyright and his 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 label, Holographic Software Installation. The defendants

are guilty of infringing the plaintiffs' rights and accordingly the present

suit was filed.

5. On 03.06.2011, a local commissioner had been appointed to visit

the premises of the defendants at Mumbai he has since filed his report.

The laptop purchased by the decoy customer from the shop of defendant

was inspected by the technical expert of the plaintiff. He found that the

same was loaded with the unauthorized software of the plaintiffs. The

local commissioner had prima facie concluded that the defendant was

guilty of infringing the intellectual rights of the plaintiffs. The laptop

and the CD were seized and thereafter were handed over to the

defendants on superdari.

6. The defendants in spite of service did not appear. They were

proceeded ex parte on 24.09.2012.

7. Ex parte evidence by way of affidavit of PW-1 (constituted

attorney of the plaintiffs) and PW-2 (Chartered Accountant of plaintiff)

has been filed. PW-1 has reiterated all the averments made in the plaint

and has proved various documents delineated as Ex.PW1/1 to Ex.PW-

1/26. PW-2 has also reiterated the averments made in plaint.

8. The plaintiff has established and proved his case.

9. Accordingly, the suit of the plaintiff is decreed and by way of the

permanent injunction, the defendants, their directors, officers, servants

and agents and all others acting for and on their behalf are restrained

from using or otherwise copying, selling, offering for sale, distributing,

hard-disk loading, issuing to the public, counterfeit/unlicensed versions

of Microsoft Office 2007, Miscrosoft Windows 7 or any other software

program of the plaintiffs in any manner which amounts to infringement

of the plaintiffs' copyright. The defendants are also directed to destroy

all the plaintiffs' software programs including the hard disk, diskettes,

packaging and advertising material, labels, stationery articles and all

other infringing materials. The plaintiffs are also awarded damages

which are quantified at Rs.1,00,000/-. Decree sheet be prepared

accordingly.

10. Suit of the plaintiff is disposed of.

INDERMEET KAUR, J

MAY 19, 2015 ndn