Delhi District Court
Sap Se vs Bharath Trainings on 21 December, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS (COMM) 329/2019
SAP SE
Dietmar-Hopp-Allee 16,
69190 Walldorf, Germany ....Plaintiff
Versus
Bharath Trainings
Ameerpet, Hyderabad
India-500061
Phone: +91-7893884646
Email: [email protected]
Whatsapp contact: +91-9948849906 ....Defendant no. 1.
Mr. Paramesh M
Bharath Trainings
Plot No 32, Ameerpet, Hyderabad
Andhra Pradesh: 500001, India
Phone: +91-9848810374
Email: [email protected] ....Defendant No.2
Date of Institution : 26.07.2018
Date when final arguments heard : 15.12.2023
Date of Judgment : 21.12.2023
EX-PARTE JUDGMENT
1.Vide this ex-parte judgment, I shall decide the suit for permanent injunction restraining infringement of copyright, trade mark, passing off, rendition of accounts of profit, delivery up etc. filed by plaintiff.
2. SAP SE/plaintiff is a company organized and existing under the laws of Germany, with its Corporate Headquarters located at Dietmar-
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Hopp-Allee 16, 69190 Walldorf, Germany. SAP India Private Limited is the wholly owned Indian subsidiary of the Plaintiff and is responsible for the sales of SAP solutions, implementation, post-implementation support, training and certification of its customers and partners in India. The Plaintiff has extensive business in India and has development centres in many prominent cities of India including Delhi. The Plaintiff includes its wholly owned subsidiary in India, 'SAP India Private Limited, having its office at 6th Floor, Plot no. A-2 MGF Corporate Park, MGF Metropolitan Mall, Saket, New Delhi 110017. The Plaintiff actively uses its name internationally as is apparent from its dedicated website www.sap.com. The Plaintiff is listed on both the Frankfurt Stock Exchange and the New York Stock Exchange under the ticker symbol "SAP." SAP Business Suite is based on Plaintiff's technology platform called NetWeaver and has the following five components, including SAP ERP:
SAP ERP (Enterprise Resource Planning); SAP CRM (Customer Relationship Management); SAP PLM (Product Lifecycle Management); SAP SCM (Supply Chain Management);
SAP SRM (Supplier Relationship Management).
3. It is averred that around January 2018, plaintiff became aware of the illegal and unauthorized activities of the defendants who were operating in connivance with each other and offering unauthorized SAP trainings on various Technical and Functional modules like SAP ABAP, SAP HANA, SAP BASIS, SAP SECURITY, SAP FICO, SAP IS Retail using pirated SAP software without having entered into any Education license agreement or license with the Plaintiff. Furthermore, defendants were indiscriminately using SAP trademark on their interactive website CS (COMM) 329/2019 Dt. 21.12.2023 pg. 2 of 9 SAP SE Vs. Bharth Training an Anr.
www.bharathtrainings.com wherein they claim to be providing both online and classroom training in respect of all SAP Modules with remote SAP Server Access.
4. Defendant No. 1's website www.bharathtrainings.com claims that "Bharath trainings is specialized in providing computer classes and online training for ERP Software Courses and IT Courses. We successfully delivered online training sessions for ERP packages like SAP online training Modules (Technical and Functional) and Oracle Online training Classes. We also provide classes for ERP Courses, Cloud Courses, testing tools training and server access for all SAP Modules". Defendant Nos. 1 and 2 are also promoting various SAP courses related to SAP Basis, SAP ABAP, SAP IDM, SAP CRM, SAP FICO, SAP BO, SAP GRC, SAP HANA, SAP HANA Admin, SAP Success Factors and others through its interactive website www.bharathtrainings.com. Apart from running interactive websites, the defendants have made profiles on social media accounts like Facebook, Twitter, YouTube, Google+, etc. to attract potential students. Plaintiff made inquiries via email provided on the defendant No.1's website [email protected] and defendants responded to Plaintiff's inquiry and provided the details of the SAP HANA Development online course. On 16.01.2016, defendants shared the bank account details of defendant No. 2 for transfer of course fees i.e. "M.Paramesh, A/C#00421050388400 HDFC Bank IFSC Code:
HDFC0000042". Thereafter, plaintiff's representative deposited first installment of fees amounting to INR 12,500/- on 29.01.2018 in the aforementioned bank account, therefore, plaintiff's representative attended several online classes and webinar held by the Defendants.
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5. Thereafter, it is averred that on reviewing the course materials shared by the defendants in the Google Drive, it was found that those training manuals were unauthorized copy of SAP original manuals which were scanned and photocopied with SAP copyright notice and logo.
Therefore, plaintiff made attempts to contact the Defendants, however, defendants could not be contacted and their website became inactive during the month of May and June. Though, in the last week of June the plaintiff came to know that the defendants have resumed their business. The conduct of the defendant of using unauthorised SAP trainings, distribution of SAP materials and of pirated software clearly shows intention to defraud, and take advantage of the reputation and goodwill of SAP brand and its business reputation.
6. It is further averred that the aforesaid activities of defendants amount to blatant infringement of Plaintiff's intellectual property rights. defendants are neither authorized partners nor have they entered into any sort of license agreement with the Plaintiff to provide SAP server access or for that matter any services in relation to SAP. From the illegal activities of the defendants caused irreparable loss and damage to the Plaintiff. It is stated that adoption and use is unauthorized and amounts to infringement of Plaintiff's exclusive rights in the trade mark 'SAP' and other SAP formative trademarks under Section 29 of the Trade Marks Act, 1999. Further, defendants are also infringing registered trademark rights of the plaintiff in 'SAP' label in relation to its copied course materials.
7. During proceedings vide order dated 26.07.2018, ad-interim injunction on application under Order 39 Rule 1 & 2 CPC was passed CS (COMM) 329/2019 Dt. 21.12.2023 pg. 4 of 9 SAP SE Vs. Bharth Training an Anr.
against the defendant no. 1 to 3. On 25.10.2018, at request of the plaintiff, defendant no. 3 was deleted from array of parties, thereafter the plaintiff was directed to file the amended memo of parties. The defendants no. 1 and 2 served through electronic modes, however, not appeared, therefore, vide order dated 27.11.2018, the interim order dated 26.07.2018 is made absolute and the defendant no. 1 and 2 are proceeded ex-parte. Plaintiff led the ex-parte evidence and examined PW-1 Ms. Sonu Kapoor and exhibited the following document as under :
1 A copy of the power of attorney Ex.PW1/1 2 A Copy of Global fact sheet of the plaintiff's Ex.PW1/2 company 3 Affidavit under section 65B of the Indian Evidence Ex.PW1/3 Act 4 List of the plaintiff's authorized education training Ex.PW1/4 partners in India 5 Online extracts from United States Copyright office Ex.PW1/5 official website of the copyright registration of the plaintiff's software SAP 6 Copies of registration of the mark SAP in various Ex.PW1/6 countries 7 Online extracts from the interbrand website's Ex.PW1/7 providing list of 100 top brands of the year 2017 while ranking SAP at 21st position 8 Copies of various orders passed by the Hon'ble High Ex.PW1/8 Court of Delhi against misuse of the plaintiff's copyright in SAP software and misuse of the mark SAP and SAP HANA 9 Online extracts from the Indian Trade Mark Ex.PW1/9 Registry's website pertaining to registration of the Plaintiff's marks SAP & SAP HANA 10 Printouts from the plaintiff's website www.sap.com Ex.PW1/10 regarding SAP and its programs 11 WhoIS details of the defendant's website Ex.PW1/11 www.bharthtraining.com 12 Online extracts from the defendant's website Ex.PW1/12 CS (COMM) 329/2019 Dt. 21.12.2023 pg. 5 of 9 SAP SE Vs. Bharth Training an Anr.
www.bharthtraining.com showing use of the plaintiff's mark SAP and details of SAP courses being offered by the defendants 13 Printouts of the emails/correspondences with the Ex.PW1/13 defendants., printout of Dropbox link alongwith relevant study material and desktop screenshots, payment receipts 14 Affidavit under section 65B of the Indian Evidence Ex.PW1/14 Act 15 Affidavit under section 65B of the Indian Evidence Ex. PW1/15 Act
8. Ld. counsel for the plaintiff submitted that from the pleading and the testimony of the PW-1 is cleared that the defendants were offering unauthorized SAP trainings on various technical and functional modules like SAP ABAP, SAP HANA, SAP BASIS, SAP SECURITY, SAP FICO, SAP IS Retail using pirated SAP software without having entered into any Education license agreement or license with the Plaintiff. The Defendants were indiscriminately using SAP trademark on their interactive website www.bharathtrainings.com wherein they claimed to be providing both online and classroom training in respect of all SAP Modules with remote SAP Server Access. The online business of the Defendants which utilized various tools such as its interactive website, webinars, cloud platforms, social media profiles to carry on its business activities of providing SAP online and/or classroom training/s using pirated software/materials was without authorization from the Plaintiff. The same is evident from online extracts from the Defendant's website which are already filed in the list of documents filed along with the plaint by the Plaintiff.
9. Therefore, plaintiff has proved that they are the prior SAP user and proprietor of the trademark 'SAP logo has become a renowned name for CS (COMM) 329/2019 Dt. 21.12.2023 pg. 6 of 9 SAP SE Vs. Bharth Training an Anr.
the consumers and trade alike, worldwide. It is apparent that trade mark SAP has attained the status of a well-known mark across the globe and hence is equally protected across all the classes of goods and services as listed in the Nice Classification of Goods and Services. The trade mark SAP has high degree of inherent distinctiveness denoting the services of the Plaintiff only; has been used extensively over a long period of time and spanning a wide geographical area including in India; has been given tremendous publicity and attained immense popularity; it is well recognized by members of the trade and public. Therefore, the Plaintiff is entitled to protection against its misappropriation for goods or services whether similar or different in nature to those of the Plaintiff. Resultantly, the brand and name "SAP" has built up an immense value for itself and thus qualifies for enhanced protection as a 'well-known mark' within the meaning of Section 2(1)(zg) read with Section 11(6) of the Trade Marks Act, 1999. Plaintiff has the exclusive right over the mark SAP, its logo and other formative marks along with the copyrighted software. The adoption and use of an identical mark/logo without authorization of the Plaintiff would amount to infringement of Plaintiff's statutory right as per Section 29(1) and (2) of the Trade Marks Act. Further the Defendant providing remote access of pirated software to train students and to end users clearly amounts to unauthorized reproduction along with primary infringement of copyright as per Section 55 of the Copyright Act. Accordingly, the present suit be decreed in favour of the plaintiff and against the defendants as prayed.
10. Heard. Record perused.
11. The testimony of PW-1 remained uncontrovered and unimpeached.
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Defendants remained ex-parte. From the evidence on record. This Court is satisfied that defendant has adopted the trademark/label SAP and/or SAP formative marks or SAP label on their website/portal or in relation to their business either by itself or in conjunction with any other word or mark, or any deceptive variant of the well-known trademark SAP or any other mark of the Plaintiff, as trade mark or trading style or domain name or key words or meta-names, amounting to infringement of the Plaintiff's registered and well- known trademarks registered under various classes including registration nos. 989935, 576754, 576755, 879286 in class 9, registration nos. 578461, 578462 in class 16, registration nos. 1238968, 1238969 in classes 41 and 42. The plaintiff being the holder of a registered trademark is entitled to protection against its infringement and the relief claimed.
12. In view of the above, plaintiff is entitled to a decree of permanent injunction against the defendants from dealing with the goods and services having infringing marks and defendant is hereby restrained from manufacturing, marketing, using, selling, soliciting, importing, exporting, displaying, advertising or by any other mode or in any manner using the impugned trademark / label as above-mentioned in para 10 and are permanently injuncted from using in any form or manner registered trademarks of the plaintiff, passing off, infringement of copyright, in relation to using any deceptively similar trademark to the plaintiff's trademark.
Damages and Costs
13. Now coming to the relief of damages. Ld. Counsel for plaintiff CS (COMM) 329/2019 Dt. 21.12.2023 pg. 8 of 9 SAP SE Vs. Bharth Training an Anr.
submitted that plaintiff also suffered immense loss to goodwill and reputation. The defendants proceeded ex-parte and not filed any rendition of accounts. In these circumstances, the punitive damages as claimed by the plaintiff could not be assessed. Therefore, the plaintiff is entitled only for nominal damages of sum of Rs. 50,000/- with cost of litigation. Relief
14. Having regard to the afore noted discussion, the suit of the plaintiff is decreed. A decree of permanent injunction in favour of plaintiff against the defendants is hereby passed and defendants are restrained from dealing with the goods and services having infringing marks and defendants are hereby restrained from selling offering for sale, marketing, advertising, distributing or dealing in/under the impugned trademarks of the plaintiff and are permanently injuncted from using in any form or manner registered trademarks of the plaintiff, passing off, infringement of copyright, in relation to using any deceptively similar trademark to the plaintiff's trademark.
15. A further decree in the nominal sum of Rs. 50,000/- towards damages is hereby passed in favour of plaintiff and against the defendants. Plaintiff is also entitled to costs of Rs. 10,000/- (inclusive of Court fees.).
16. Decree sheet be drawn up accordingly. File be consigned to record room.
Announce in the open court on 21st December, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts- 03), SE/Saket Courts/Delhi CS (COMM) 329/2019 Dt. 21.12.2023 pg. 9 of 9 SAP SE Vs. Bharth Training an Anr.