The Foundry Visionmongers Limited vs Visual Birds Institute And Studio Vibes ... on 5 September, 2022

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Delhi High Court - Orders

The Foundry Visionmongers Limited vs Visual Birds Institute And Studio Vibes ... on 5 September, 2022

Bench: Navin Chawla

                    $~21
                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +    CS(COMM) 615/2022
                         THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
                                       Through: Mr.Pravin Anand, Mr.Shantanu
                                                Sahay, Mr.Apoorv Bansal, Advs.
                                                (Mobile-7044127966)

                                                versus

                             VISUAL BIRDS INSTITUTE AND STUDIO VIBES PRIVATE
                             LIMITED & ANR.                       ..... Defendants
                                           Through: Nemo.

                          CORAM:
                          HON'BLE MR. JUSTICE NAVIN CHAWLA
                                          ORDER

                    %                     05.09.2022
                    I.A. 14330/2022(Exemption)
                    1.       Allowed, subject to all just exceptions.
                    I.A. 14329/2022

2. This is an application filed on behalf of the plaintiff seeking leave to file additional documents which are not in the power, possession, control or custody of the plaintiff at the moment.

3. The plaintiff may file the additional documents strictly in accordance with the provisions of the law.

4. The application stands disposed of.

IA 14332/2022

5. This application has been filed seeking exemption from filing pre- institution mediation under Section 12A of the Commercial Courts Act, 2015.

6. Having perused the contents of the application, the same is allowed.

Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 I.A. 14331/2022

7. This is an application seeking exemption from making advance service of the suit paper book on the defendants.

8. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making an advance service of the suit paper book on the defendants.

CS(COMM) 615/2022

9. Let the plaint be registered as a suit.

10. Issue summons to the defendants to be served through all permitted modes, including electronically, returnable on 20th January, 2023 before the learned Joint Registrar (Judicial).

11. The summons to the defendant(s) shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendant(s) shall also file the affidavit(s) of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.

12. Liberty is given to the plaintiff to file the replication(s) within a period of 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the plaintiff, the affidavit(s) of admission/denial of documents of the defendant(s) be filed by the plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

I.A. 14327/2022

13. Issue notice. On the plaintiff taking steps, let notice be served on the Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 defendants through all permissible modes, including electronically, returnable on 20th January, 2023 before the learned Joint Registrar (Judicial).

14. Let reply(ies) to the application be filed by the defendants within a period of 30 days of receipt of notice. Rejoinder(s) thereto, if any, be filed within a period of 15 days thereafter.

15. It is the case of the plaintiff that the plaintiff-company was established in the year 1996 under the laws of England and Wales and is a leading innovator of Visual Effects (in short, 'VFX') and Image Processing Technologies for motion pictures, animations, commercials, broadcast post- production, among other. The plaintiff-company has offices in London, Los Angeles and Mountain View, California.

16. The plaintiff asserts that its software programs have gained much popularity worldwide and have a well-established client base, such as Warner Brothers, the Moving Picture Company, Weta Digital, Framestone, Sony Pictures Imageworks and Digital Domain. The details of accolades won by the plaintiff for the VFX content done for this client base are provided in paragraph 8 of the plaint.

17. The plaintiff further asserts that its software products are extremely popular in India as well and are used by leading India Studios such as Prime Focus, EFX, Prasad and Redchillies for their work in the Bollywood film industry.

18. The plaintiff's flagship software program for rendering VFX is 'NUKE'. It is used for films, commercials and short form; stereo and stereoscopic conversion. The plaintiff is also the publisher of other visual- effects software programs such as 'MODO', 'MARI', 'HIERO', 'OCULA', 'KATANA', 'FLIX', 'CARA VR' and 'COLORWAY'. The Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 plaintiff claims the copyright under the provisions of the Copyright Act, 1957 (in short, 'the Act') in its software programs, including 'NUKE' and its four editions, namely, 'NUKE', 'NUKE X'; 'NUKE STUDIO'; and 'NUKE RENDER'. The plaintiff contends that its software programs and all user instruction manuals included with it are 'literary works' capable of protection within the meaning of the Act.

19. The plaintiff asserts that its genuine software programs are also licensed through internet delivery, during which process the customer agrees to the terms of an End-User License Agreement prior to software installation for the requisite number of computers on which the software has been loaded/installed or in concurrent use at its premises. Thereafter, the plaintiff's authorized distributor sends the license key to the customer's registered e-mail address, following which the installation of the software is made possible. In this manner, the plaintiff protects its copyrights in the software program.

20. The plaintiff also claims to have installed security mechanisms for capturing and recording very specific information about the usage of the software program by the host and the computer on which it has been installed and used. This helps in collecting information regarding the usage of software, computer system, and infringement, if any.

21. The plaintiff claims that the defendant no. 1 has one legal license of the plaintiff's 'NUKE X' software, however, in the month of November 2020, the plaintiff was informed of the defendants using unauthorized/pirated versions of the plaintiff's 'NUKE' and 'NUKE X' software. The plaintiff through its representative, informed the defendants about the infringement happening in their premises, vide email dated Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 05.11.2020. In response to the said email dated 12.11.2020, the defendant no. 2 out rightly denied any possibility of infringement happening at the premises of the defendant no.1 and further accused the plaintiff of harassment and threatened them with legal consequences. The plaintiff checked its phone-home portal for instances of infringement and became aware that defendants are using the plaintiff's 'NUKE' and 'NUKE X' software programs on at least twenty-six computer systems, the details of such alleged infringement are given by the plaintiff in paragraph 38 of the plaint. The plaintiff also found further evidence of infringement of its copyright by the defendants.

22. Having considered the submissions made by the learned counsel for the plaintiff, the contents of the plaint and the documents annexed thereto, I am of the opinion that the plaintiff has been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the plaintiff and against the defendants. The plaintiff is likely to suffer grave irreparable injury in case an ad-interim injunction, as prayed for, is not granted to the plaintiff.

23. Accordingly, prayer in terms of paragraph 49(a) and (b) of the present application is granted in favour of the plaintiff and against the defendants, till the next date of hearing.

24. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908, be made within a period of ten days.

I.A. 14328/2022

25. By this application, the plaintiff prays for the appointment of Local Commissioner to visit the premises of the defendants.

26. In my opinion, the plaintiff has been able to make out a case for Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 appointment of Local Commissioner. Accordingly, I appoint Mr.Soayib Qureshi, Advocate (Mobile-8800543987) as the Local Commissioner to visit the premises of the defendants mentioned hereinbelow:

406, 4th Floor Morya Land Mark 2, Lokhandwala, Andheri West, Mumbai 400102.

27. The Local Commissioner, upon visiting the aforementioned premises of the defendants, shall execute the following works:

(i) Inspect the Hard Disks of the computers, compact discs and/ or other storage/replicating media, with the help of Technical Experts, and representatives of the plaintiff and also prepare audit reports/ license summaries/ inventories of the same, and to determine if they contain pirated/counterfeit/unlicensed versions of the plaintiffs' software programs.

(ii) Seize and seal the computer CPUs, compact discs, and/ or other storage/replicating media as found to contain unlicensed/ pirated/ counterfeit versions of any of the plaintiff's software programs and return the said seized and sealed goods on superdari to the defendants with a direction to produce the same before the Court, without tampering with them in any manner, as and when directed by this Court.

(iii) Direct the defendants, their employees, and agents to provide password particulars of any computer system, if required, in order to be enabled to carry out the acts specified in (i) and (ii) above.

28. The Local Commissioner shall be entitled to seek police assistance and protection to enable the execution of the orders of this Court. The SHO of the said area be directed to provide immediate assistance to the Local Commissioner upon request.

29. The Local Commissioner shall be accompanied by two Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23 representatives of the plaintiff, including the learned counsel for the plaintiff.

30. The Local Commissioner shall be allowed to photograph as also videograph the proceedings executed as mentioned in the order of this Court.

31. The plaintiff shall serve a copy of this Order upon the defendants, along with a copy of the paper book of the suit, at the time of execution of the proceedings.

32. The fee of the Local Commissioner is fixed at Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only), apart from the out-of-pocket expenses incurred by the Local Commissioner, to be paid by the plaintiff at the first instance.

33. The Local Commissioner shall file his report within two weeks of the execution of the Commission.

34. The application is allowed in the above terms.

35. This order may not be uploaded on the website of the Delhi High Court for a period of ten days.

36. A copy of this order be given dasti under the signatures of the Court Master to the learned counsel for the plaintiff.

NAVIN CHAWLA, J SEPTEMBER 5, 2022 RN Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:19.09.2022 16:53:23

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Delhi High Court - Orders