Delhi District Court
Sap Se vs Visionsap 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) 357/2019
IN THE MATTER OF:
SAP SE
Dietmar-Hopp-Allee 16,
69190 Walldorf, Germany .....Plaintiff
Versus
VISIONSAP
www.visionsap.com
Plot No. 45, Gayathrinagar
Ameerpet, Hyderabad - 500016
Andhra Pradesh, India
Phone: +91 7382121738
Email: [email protected] ....Defendant No. 1
MR. GOPI NATH
Proprietor
VISIONSAP
www.visionsap.com
Plot No. 45, Gayathrinagar
Ameerpet, Hyderabad - 500016
Andhra Pradesh, India
Phone: +91 9348369939
Email: [email protected] ....Defendant No. 2
CRAZY DOMAINS FZ-LLC (IANA #1291)
(Registrar of www.visionsap.com)
211, DIC Building 11 Dubai Internet City
Dubai, United Arab Emirates
Email: [email protected]
[email protected]
CS (COMM) 357/2019 Dt. 21.12.2023 pg. 1 of 12
SAP SE Vs. VisionAP
[email protected] ....Defendant No. 3
CLOUDFLARE, INC.
(Web hosting provider of www.visionsap.com)
101 Townsend St.San Francisco, CA 94107, USA
Email: [email protected] ....Defendant No. 4
Date of Institution : 08.10.2018
Date when final arguments heard : 15.12.2023
Date of Judgment : 21.12.2023
EX-PARTE JUDGMENT
1.Vide this ex-parte judgement, 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- 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 CS (COMM) 357/2019 Dt. 21.12.2023 pg. 2 of 12 SAP SE Vs. VisionAP 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, the Plaintiff became aware of the illegal and unauthorized activities of the Defendant Nos. 1 and 2 who are operating in connivance with each other and offering unauthorized access to pirated SAP software through remote server access, SAP installation, SAP plug and play hard drives, SAP training videos and SAP online trainings on all Technical and Functional modules such as SAP ABAP, SAP HANA, SAP BPC, SAP BW, SAP FICO, SAP BASIS, SAP MDG, SAP SRM, SAP BODS, SAP IS RETAIL, etc. using pirated/ unlicensed SAP software without having entered into any Education license agreement or license with the Plaintiff. In addition, Defendant no. 1 and 2 were indiscriminately using trademark SAP/ on their interactive website www.visionsap.com wherein they claim to be providing online trainings in respect of several SAP Modules with remote SAP Server Access. The Defendant No. 2, namely, Mr. Gopi Nath seems to be the proprietor/director/authorised representative of the Defendant No. 1 firm. The Defendant No. 3, namely, Crazy Domains FZ-LLC is the Registrar of the domain name www.visionsap.com and the Defendant No. 4, viz., Cloudflare, Inc. is the web hosting provider of the website www.visionsap.com. The exact constitution and relationship of CS (COMM) 357/2019 Dt. 21.12.2023 pg. 3 of 12 SAP SE Vs. VisionAP the parties will be known only after discovery in the present suit. The Plaintiff's grievance against Defendant Nos. 3 and 4 is limited to seeking directions to disclose the actual Registrant's details, transfer or cancel the domain name <visionsap.com> and restraint them from hosting the website www.visionsap.com or in any manner distribute the pirated materials of which Plaintiff is the copyright owner. The Plaintiff submits that the expression "the Defendants" wherever used refers to Defendant nos. 1 and 2 only. Printouts providing the WHOIS and web-hosting details of the Defendants' domain name/ website www.visionsap.com are being filed along with list of documents.
4. As per information, defendants' website www.visionsap.com, they claim that "We are the leading SAP Online Server Access providers for all modules. We provide the access through remotely configured login's or through the SAP GUI configurations and also the Preinstalled Virtual Machines which you will be able to run the standalone SAP Server on your own machines without any single configuration. Visionsap is providing quality SAP Remote Access for individuals and companies. Visionsap is providing 24/7 Online Support and you will get the SAP Remote Server Access instantly within 30 mins after paying subscription charges". It is clear that Defendants were, through their website www.visionsap.com, openly offering inter alia installation and remote server access of pirated SAP software covering several SAP modules for training or studying purpose, upon payment of subscription fee on a monthly basis. These servers can be accessed from anywhere in the country including in Delhi with no installations required on desktop or laptop/tablet. The Defendants are further providing online trainings on all CS (COMM) 357/2019 Dt. 21.12.2023 pg. 4 of 12 SAP SE Vs. VisionAP SAP products/services by use of unlicensed/ pirated SAP software and other confidential or copyright-protected materials. They have also detailed out the description and curriculum of the courses with their respective fees on their website. Copies of relevant printouts from the Defendants' website www.visionsap.com are being filed with the list of documents.
5. On July 13, 2018, the Plaintiff through its representative made telephonic inquiries with Mr. Gopi Nath (Defendant No. 2) at the contact number provided on the Defendants' website to obtain SAP HANA remote server access and also followed up with him through whatsapp messages. Mr. Gopi Nath responded to the Plaintiff's request on the same day and shared their bank account details for transfer of Rs. 6700/- towards the fees for SAP HANA remote server access for one month. The bank account details of the Defendants were mentioned as "Mahabob Shariff Sheikh, A/C No. 50100055404564 HDFC Bank IFSC Code:
HDFC0004348, Kalyan Nagar Branch, Hyderabad". On July 18, 2018, the above payment was made by the Plaintiff's representative. In response, he provided the remote server access credentials vide email dated July 18, 2018.
6. Thereafter, on reviewing the server access details, the plaintiff noted that the defendants provided the access details with the user name:
s4user5 and password: hana@99 to remote desktop connection with the IP address 183.82.114.15:1111 for accessing the pirated SAP software for a period of one month. On accessing and reviewing the remote desktop connection at the IP address 183.82.114.15:1111. It is obvious and confirmed from the above that the Defendants are providing access to CS (COMM) 357/2019 Dt. 21.12.2023 pg. 5 of 12 SAP SE Vs. VisionAP pirated SAP software via remote server to its students and subscribers. Therefore, plaintiff's representative, on the pretext of a prospective student, has also sent several anonymous inquiry emails to the defendants asking for the details of SAP online course including the fee structure and duration for the same. On making further follow-up through whatsapp messages on August 27, 2018, the defendants finally shared the course contents/description, duration and fees details for S4HANA FINANCE online course through their email and whatsapp messages dated August 27, 2018.
7. It is submitted that as on date, the defendants continue to openly and brazenly offer remote server access to SAP pirated software, SAP installation, SAP training videos and SAP online training including SAP HANA, SAP FICO, etc., as well as promote their unauthorized activities through their interactive website www.visionsap.com and their profiles created on social media social networking websites like Facebook. The Defendants are running its business all over India including in Delhi providing remote server access to pirated SAP software and online trainings for various SAP modules by use of unlicensed/ pirated SAP software and other confidential or copyright-protected materials. The conduct of the defendants i.e., conducting unauthorised SAP trainings, distribution of SAP materials and use of pirated software clearly shows intention to defraud, and take advantage of the reputation and goodwill of SAP brand and its business reputation.
8. The Defendant Nos. 1 and 2 are operating in connivance with each other with Defendant Nos. 3 and 4 aiding them by registering a domain name containing SAP mark, hosting the website/ contents that infringe the CS (COMM) 357/2019 Dt. 21.12.2023 pg. 6 of 12 SAP SE Vs. VisionAP Plaintiff's trademark and copyright. The activities of Defendant Nos. 1 and 2 are clearly illegal to give the impression that they are an authorised business/ education partner of the Plaintiff, which is totally false. The aforesaid activities of Defendants amount to blatant infringement of Plaintiff's intellectual property rights. The Plaintiff has at no time authorised/licensed the Defendants to use their SAP software or provide educational training to third parties or offer them any software for sale by uploading them on remote servers. In this regard, it is reiterated that SAP study materials, SAP software and course contents are copyright protected and using the same in the form of a commercial service through remote server access without written permission of the Plaintiff is patently illegal. The Defendants are neither authorized education 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.
9. The Plaintiff submits that apart from the blatant infringement of the Plaintiff's Copyright in the software and trademarks, the aforesaid illegal activities of the Defendants cause irreparable loss and damage to the Plaintiff. The Plaintiff has absolutely no connection with the Defendants, whatsoever, and all their activities in relation to SAP copyrighted software are unauthorized and clearly illegal.
10. During proceedings vide order dated 15.10.2018, ad-interim injunction on application under Order 39 Rule 1 & 2 CPC was granted against the defendants. The defendants not appeared, however, the plaintiff wishes to delete defendant no. 5 and the defendant no. 5 stands deleted vide order dated 09.10.2019. the defendant no. 1 to 4 proceeded ex-parte vide order dated 13.03.2019. Plaintiff led the ex-parte evidence CS (COMM) 357/2019 Dt. 21.12.2023 pg. 7 of 12 SAP SE Vs. VisionAP 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 SAP Global Corporate Fact Sheet dated Ex. PW1/2 July 19, 2018
3. Affidavit under section 65B of the Indian Evidence Ex. PW1/3 Act
4. A list of authorized education training partners of the Ex. PW1/4 plaintiff 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 Copies of extracts downloaded from the Trade Marks Ex. PW1/7 Registry's website and/or registration certificates pertaining to the plaintiff's SAP and SAP HANA marks 8 The relevant extracts downloaded from Ex. PW1/8 www.interbrand.com listing the world's top 100 most valuable brands in 2017 while ranking 'SAP' at 21st position 9 Printouts from the plaintiff's website www.sap.com Ex. PW1/9 regarding SAP and its programs 10 Printouts providing the WHOIS and web-hosting Ex. PW1/10 details of the Defendants' domain name/ website www.visionsap.com 11 Copies of relevant printouts from the defendant's Ex. PW1/11 website www.visionsap.com showing use of the plaintiff's mark SAP and details of SAP courses being offered by the defendants 12 Printouts of the defendants' facebook page and third Ex. PW1/12 party website/s providing the defendants' information/details 13 Copies of the emails and screenshots of whatsapp Ex. PW1/13 messages exchanged with the defendants to obtain remote server access 14 Copy of the payment receipt dated July 18, 2018 Ex. PW1/14 depositing the fee amount in defendants' account CS (COMM) 357/2019 Dt. 21.12.2023 pg. 8 of 12 SAP SE Vs. VisionAP 15 The screenshots of the remote server access Ex. PW1/15 providing the relevant information/details 16 Copies of plaintiff's email dated July 6, July 13, July Ex. PW1/16 31, August 15, August 24, 2018 inquiring details of SAP online courses from the defendant's 17 Copy of defendants' email dated August 27, 2018 Ex. PW1/17 and Whatsapp messages exchanged with the defendants on August 27, 2018 providing the details from SAP online course 18 Certificate under section 65B of the Indian Evidence Ex. PW1/18 Act.
19 Certificate under section 65B of the Indian Evidence Ex. PW1/19 Act.
11. 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.
12. Therefore, plaintiff has proved that they are the prior SAP user and CS (COMM) 357/2019 Dt. 21.12.2023 pg. 9 of 12 SAP SE Vs. VisionAP proprietor of the trademark 'SAP logo has become a renowned name for 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.
13. Heard. Record perused.
CS (COMM) 357/2019 Dt. 21.12.2023 pg. 10 of 12 SAP SE Vs. VisionAP
14. The testimony of PW-1 remained uncontrovered and unimpeached. 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.
15. In view of the above, plaintiff is entitled to a decree of permanent injunction against the defendant 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.
CS (COMM) 357/2019 Dt. 21.12.2023 pg. 11 of 12 SAP SE Vs. VisionAP Damages and Costs
16. Now coming to the relief of damages. Ld. Counsel for plaintiff 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 of sum of Rs. 50,000/- only for nominal damages with cost of litigation. Relief
17. 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.
18. Accordingly, a further decree in the nominal sum of Rs. 50,000/- 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.).
19. 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) 357/2019 Dt. 21.12.2023 pg. 12 of 12 SAP SE Vs. VisionAP