Delhi High Court - Orders
Order Xxxix Rules 1 & 2 Read With Section ... vs Imperial Auto Industries Limited & Anr on 31 August, 2021
Author: Asha Menon
Bench: Asha Menon
$~Suppl.-15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (COMM) 390/2021, I.As. 10698/2021 (by the plaintiff under
Order XXXIX Rules 1 & 2 read with Section 151 CPC for ad-
interim temporary injunction), 10699/2021 (by the plaintiffs under
Order XI Rule 1 (4) read with Section 151 CPC seeking leave to
file additional documents) & 10700/2021 (Exemption)
DASSAULT SYSTEMES & ORS. .....Plaintiffs
Through: Mr. Pravin Anand, Mr. Shantanu
Sahay and Mr. Apoorv Bansal,
Advocates
Versus
IMPERIAL AUTO INDUSTRIES LIMITED & ANR.
.....Defendants
Through: None
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 31.08.2021
[VIA VIDEO CONFERENCING]
I.A.10700/2021 (Exemption from filing clear/certified copy, etc., and duly notarized affidavits and the suit papers)
1. Allowed, subject to all just exceptions.
2. The duly notarized affidavit(s) and the suit papers alongwith the court fees/deficit court fees, if any, be filed within four weeks from the date of resumption of the regular functioning of this court.
3. The application is disposed of.
I.A.10699/2021 (by the plaintiffs under Order XI Rule 1 (4) read with Section 151 CPC seeking leave to file additional documents)
1. For the reasons stated in the application, the application is allowed, Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 1 of 6 Signing Date:01.09.2021 21:33:40 subject to the plaintiff filing the additional documents positively within a period of 30 days from today.
2. The application is disposed of.
CS (COMM) 390/2021, I.A.10698/2021 (by the plaintiff under Order XXXIX Rules 1 & 2 read with Section 151 CPC for ad-interim temporary injunction)
1. The plaint be registered as a suit.
2. The present suit has been filed by the plaintiffs with the following prayers:-
"a) A decree of permanent injunction restraining the Defendants, their agents, franchisees, servants and all others acting for and on their behalf, from directly or indirectly copying, reproducing, storing, installing and/or using pirated/unlicensed software programs of Plaintiffs including CATIA, SOLIDWORKS and its various versions or any other software programs developed by the Plaintiffs in any manner that may amount to infringement of the Plaintiffs' copyright subsisting in its software programs and software related documentation.
b) An order for delivery-up to the Plaintiffs, of all the unlicensed copies of the Plaintiffs' software, and/or articles/ software, the duplicating equipment used in the copying of the Plaintiffs' software, including computers, compact disc writers, stampers, burners, "plates", hard disks, diskettes, packaging and advertising material, labels, stationery articles and all other infringing material under Section 58 of the Act;
c) An order for delivery-up to the Plaintiffs, of all the information of the computer systems the Defendants have Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 2 of 6 Signing Date:01.09.2021 21:33:40 been using to run the unlicensed software program of the Plaintiff and other such information regarding the procurement of the unlicensed software program of the Plaintiff from any third-party entity, if any.
d) An order for rendition of accounts of profits illegally earned by the Defendants by reason of infringement of the Plaintiffs' copyright, including conversion damages which are presently indeterminate and a decree be passed against the Defendants in the sum of the amount so ascertained;
e) An order for costs in these proceedings;
Pass any further orders this Hon'ble Court deems fit considering the facts and circumstances of the present case."
3. Issue summons in the suit and notices in the application to the defendants by all permissible modes, returnable before the Joint Registrar.
4. The summons shall indicate that the written statement(s) to the suit and reply(ies) to the application be filed by the defendant(s) within thirty days from the date of receipt of the summons. The defendant(s) shall also file the affidavit of admission/denial of the document(s) filed by the plaintiff(s), failing which the written statement(s) shall not be taken on record.
5. The plaintiffs are at liberty to file replication(s) to the written statement(s) and rejoinder(s) to the reply(ies) filed by the defendant(s) before the next date of hearing following the filing of the written statement(s)/reply(ies). The replication(s) shall be accompanied by the Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 3 of 6 Signing Date:01.09.2021 21:33:40 affidavit of admission/denial in respect of the documents filed by the defendant(s), failing which the replication(s) shall not be taken on record.
6. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the time lines.
7. Mr. Pravin Anand, learned counsel for the plaintiffs, has submitted that ex parte interim injunction be granted in this case as the plaintiffs were losing Rs.3 crores on account of the unauthorized use of the CATIA and SOLIDWORKS software programs and its various versions, which have been developed by the plaintiffs. It is also submitted that the plaintiffs have been issued Certificate of Registration from the Copyright Office, United States of America, in accordance with title 17, United States Code, for these software programs. Learned counsel has further submitted that in view of the Berne Convention, 1886, Universal Copyright Conventions, World Trade Organization Agreement and Section 40 of the Copyright Act, 1957 read with the International Copyright Order 1999, these copyrights were valid even in India.
8. Learned counsel for the plaintiffs has submitted that by the "phone home", a technology built into the plaintiffs' software, which verifies whether plaintiffs' software is being used in accordance with the terms of its End User License Agreement (EULA) and/or the Customer License and Online Services Agreement (CLOSA), a very precise capture of the infringement was possible and the plaintiffs had been able to capture seven instances of infringement of the software CATIA and five instances of infringement of SOLIDWORKS software. Learned counsel has also pointed out to the column in the "infringement details" where the I.P. addresses of each of the computers, where the infringement has been Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 4 of 6 Signing Date:01.09.2021 21:33:40 effected, have also been mentioned, which are placed at pages 57-60 of the "Documents Folder" in the E-file.
9. The learned counsel for the plaintiffs has also relied on the orders of this court passed in similar matters being Dassault Systemès Solidworks Corporation & Anr v. Intertech Technologies Private Limited and Anr. [order dated 5th August, 2021 in CS(COMM) 354/2021], Dassault Systemès Solidworks Corporation & Anr v. Zoneonne Venture Private Limited & Anr. [order dated 23rd July, 2021 in CS(COMM) 334/2021] and Dassault Systemès Solidworks Corporation & Anr v. Spartan Engineering Industries Private Limited & Anr. [order dated 28th January, 2021 in CS(COMM) 34/2021].
10. Having heard learned counsel for the plaintiffs and perused the record, particularly the registration of the CATIA and SOLIDWORKS software programs , as copyrighted intellectual properties, and in the light of the infringement details, reflecting instances of infringement of these registered copyrighted works, till the next date of hearing, the defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf at the defendants' premises, are restrained from directly or indirectly:
(a) using for any kind of computer related activities or otherwise in any other manner, any pirated/unlicensed/unauthorized software programs of the plaintiffs or reproducing and distributing any pirated/unlicensed/unauthorized software of the Plaintiffs in contravention of the terms of the End User License Agreement(s) (EULA)/ Customer License and Online Services Agreement (CLOSA), or infringing in any Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 5 of 6 Signing Date:01.09.2021 21:33:40 other manner or causing or enabling or assisting others to infringe the copyrights of the plaintiffs, including CATIA and SOLIDWORKS software and its various versions or any other software programs developed by the plaintiffs in any manner that may amount to infringement of the plaintiffs' copyright subsisting in its software programs as well as associated modules and 'Add-ins' and software related documentation; and,
(b) formatting the computer systems and/or erasing any data, log files, installations, etc. pertaining to assisting others to infringe the copyrights of the plaintiffs subsisting in its software programs and software related documentation including CATIA and SOLIDWORKS as well as associated modules and 'Add-ins' software and its various versions or any other software programs developed by the plaintiffs.
11. Provisions of Order XXXIX Rule 3 CPC be complied with.
12. List before the Joint Registrar on 27th October, 2021 for completion of service and pleadings.
13. List before the court on 8th March, 2022.
14. The order be uploaded on the website forthwith.
ASHA MENON, J AUGUST 31, 2021 s Signature Not Verified Signed By:MANJEET KAUR CS (COMM) 390/2021 Page 6 of 6 Signing Date:01.09.2021 21:33:40