Delhi High Court - Orders
The Foundry Visionmongers Limited vs Sri Sarathi Studios Private Limited & ... on 27 April, 2023
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 236/2023
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Shantanu
Sahay, Ms. Shreya Shukla and Mr.
Apoorv Bansal, Advocates.
versus
SRI SARATHI STUDIOS PRIVATE LIMITED & ANR.
..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 27.04.2023 I.A. No. 7716/2023 (seeking leave to file additional documents)
1. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015.
2. Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
3. Accordingly, the application stands disposed of.
I.A. No. 7717/2023 (seeking exemption from filing originals, certified copies, clearer copies, translated copies, left side margins, etc.)
4. Exemption is granted, subject to all just exceptions.
5. Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
Signature Not Verified Digitally Signed CS(COMM) 236/2023 Page 1 of 5 By:SAPNA SETHI Signing Date:28.04.2023 18:05:196. The application is disposed of.
I.A. No. 7718/2023 (seeking exemption from advance service to the Defendants)
7. Mr. Pravin Anand, counsel for Plaintiff, has handed over an affidavit of service, enclosing therewith a proof of dispatch of an advance copy of the paper-book to the Defendants through e-mail. The said affidavit is taken on record.
8. In view of the above, the present application is rendered infructuous and is disposed of as such.
I.A. No. 7719/2023 (seeking exemption from conducting pre-litigation mediation with the Defendants)
9. Having regard to the facts of the present case and in light of the judgement of Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.,1 exemption from attempting pre- institution mediation is allowed.
10. Accordingly, the application stands disposed of.
CS(COMM) 236/2023
11. Let the plaint be registered as a suit.
12. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file 1 DHC Neutral Citation: 2022/DHC/004454.
Signature Not Verified Digitally Signed CS(COMM) 236/2023 Page 2 of 5 By:SAPNA SETHI Signing Date:28.04.2023 18:05:19affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record.
13. Liberty is given to the Plaintiff to file replication(s) within 15 days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants, 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.
14. List before the Joint Registrar for marking of exhibits on 01st August, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
15. List before Court for framing of issues thereafter.
I.A. No. 7715/2023 (u/Order XXXIX Rules 1 & 2 r/w Section 151 of the Code of Civil Procedure, 1908)
16. Plaintiff has filed the present suit for a decree of permanent injunction against Defendants for infringement of copyright and piracy of its "NUKE", "NUKE X" and "NUKE STUDIO" software programmes and other ancillary reliefs.
17. The case, as set out in the plaint, is as follows: Plaintiff, a company based in United Kingdom, has developed various software programmes visual effects ["VFX"] and image processing technologies, including "NUKE", "NUKE X", "NUKE STUDIO" and "NUKE RENDER", which are applied inter alia for visual effects in motion pictures, animations, commercials, broadcast post-production [hereinafter collectively, "the Software"].
Signature Not Verified Digitally Signed CS(COMM) 236/2023 Page 3 of 5 By:SAPNA SETHI Signing Date:28.04.2023 18:05:1918. Mr. Anand submits that the Software were developed by Plaintiff's employees during the course of their employment, and thus, Plaintiff is the owner of copyrights vested therein. The Software provide day-to-day workflow and ensure highest visual effects, and are used by major studios, production facilities, independent boutique companies etc. To curb piracy and unauthorised use, customers are required to enter into an End-User License Agreement ["EULA"] prior to installation on their computer devices. Customers then receive a license-key on their registered e-mail addresses, and the Software are installed upon successful verification. Additionally, Plaintiff has devised a "phone home" technology/ mechanism, which is built into the Software and verifies whether the same is being used in accordance with the terms of EULA by recording certain information such as Media Access Control ["MAC"] address, number of times a pirated/ unauthorised copy of the Software is used (i.e., infringement hits), IP address etc.
19. Defendant No. 1 - Sri Sarathi Studios Private Limited, offers various VFX related services for films, television serials, commercials etc. They maintain an interactive website "prasadadityagroup.com/group- companies/sri-sarathi-studios-pvt-ltd/" as also profiles on third-party social media websites such as LinkedIn and YouTube. Defendant No. 2 is stated to be a Director of Defendant No. 1.
20. Mr. Anand submits that Defendants purchased 8 legal licenses for Plaintiff's "NUKE X" software, however, in February 2023, Plaintiff learnt from market sources that Defendants are using pirated versions of the Software on their computer systems for business purposes, without their consent and in violation of EULA.
Signature Not Verified Digitally Signed CS(COMM) 236/2023 Page 4 of 5 By:SAPNA SETHI Signing Date:28.04.2023 18:05:1921. The Court has considered the afore-noted. The unauthorised use of the Software by Defendants has been confirmed by the 'infringement hits' traced from Plaintiff's phone home technology. As detailed in paragraph No. 38 of the plaint, a total of 2865 infringement hits have been detected on 60 computer systems of Defendants. Therefore, the Plaintiff has, on a prima facie basis, demonstrated that Defendants are using pirated/ unauthorised versions of the Software and is thus, entitled to an ex-parte ad-interim injunction. The balance of convenience lies in favour of Plaintiff and against the Defendants, and in case the injunction is not granted, Plaintiff will suffer an irreparable loss.
22. Accordingly, till the next date of hearing, the Defendants and their directors, employees, officers, servants, agents and all others, acting for and on their behalf are restrained from directly or indirectly using or reproducing and distributing any pirated/ unlicensed/ unauthorized copies of the Software in respect of any kind of computer related activities, which amounts to infringement of Plaintiff's copyright in the Software or contravention of the terms of EULA or causes or enables or assists others to infringe the copyright of the Plaintiff in the Software and their various versions developed by the Plaintiff.
23. List on 09th October, 2023.
SANJEEV NARULA, J APRIL 27, 2023/as Signature Not Verified Digitally Signed CS(COMM) 236/2023 Page 5 of 5 By:SAPNA SETHI Signing Date:28.04.2023 18:05:19