Bentley Systems Inc & Anr vs Mr Archit Gupta & Anr on 30 July, 2024

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Delhi High Court - Orders

Bentley Systems Inc & Anr vs Mr Archit Gupta & Anr on 30 July, 2024

                                    $~37
                                    *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    +        CS(COMM) 625/2024

                                             BENTLEY SYSTEMS INC & ANR.             .....Plaintiffs
                                                          Through: Mr. Pravin Anand, Mr. Shantanu
                                                                   Sahay, Ms. Vareesha Irfan and Ms.
                                                                   Shreya Shukla, Advocates

                                                                                               Versus

                                        MR ARCHIT GUPTA & ANR.                                                             .....Defendants
                                                      Through: None.
                                    CORAM:
                                    HON'BLE MR. JUSTICE SAURABH BANERJEE

                                                              ORDER

% 30.07.2024 I.A. 34826/2024 (pre-litigation mediation)

1. The plaintiffs seek exemption from instituting pre-litigation mediation.

2. Considering the averments made in the present application wherein the plaintiffs seek urgent ad-interim reliefs as also appointment of Local Commissioner and further in view of Yamini Manohar vs. T.K.D. Krithi 2023 SCC OnLine 1382 and Chandra Kishore Chaurasia vs. R. A. Perfumery Works Private Limited. 2022:DHC:4454-DB, the plaintiffs are exempted from instituting pre-litigation mediation.

3. Accordingly, the present application is allowed and disposed of. I.A. 34824/2024 (exemption)

4. Exemption allowed, subject to all just exceptions.

5. The application stands disposed of.

CS(COMM) 625/2024 Page 1 of 11

This is a digitally signed order.

6. The plaintiffs, vide the present application, are seeking exemption from advance service upon the defendants.

7. Learned counsel for the plaintiffs submit that considering the position involved, particularly since appointment of Local Commissioner for execution of search and seizure at the premises of defendants is being sought, there is a likelihood that the apprehensions of the plaintiffs will become a reality in case advance service is affected and therefore, an exemption from effecting advance service is necessary.

8. For the reasons stated in the application as also taking into account the aforesaid factors, in the interest of justice the plaintiffs are granted exemption from effecting advance service upon the defendants.

9. Accordingly, the present application is allowed and disposed of. I.A. 34823/2024 (additional documents)

10. The plaintiffs, vide the present application, are seeking time of thirty days to file additional documents.

11. The plaintiffs will be at liberty to file additional documents at a later stage, albeit, strictly as per the provisions of the Commercial Courts Act, 2015 and Delhi High Court (Original Side) Rules, 2018.

12. Accordingly, the present application is allowed and disposed of. CS(COMM) 625/2024

13. The plaintiffs by way of the present suit seek permanent injunction restraining defendants from infringement of copyright, rendition of accounts of profit, damages, etc.

14. Let the plaint be registered as a suit.

15. Upon filing of the process fee, issue summons of the suit to the CS(COMM) 625/2024 Page 2 of 11 This is a digitally signed order.

16. The summons shall state that the written statement(s) be filed by the defendants within a period of thirty days from the date of the receipt of the summons. Written statement(s) be filed by the defendants along with affidavit(s) of admission/ denial of documents of the plaintiffs, without which the written statement(s) shall not be taken on record.

17. Replication(s) thereto, if any, be filed by the plaintiffs within a period of fifteen days from the date of receipt of written statement(s). The said replication, if any, shall be accompanied by with affidavit(s) of admission/ denial of documents filed by the defendants, without which the replication(s) shall not be taken on record within the aforesaid period of fifteen days.

18. If any of the parties wish to seek inspection of any document(s), the same shall be sought and given within the requisite timelines.

19. List before the Joint Registrar for marking exhibits of documents on 08.10.2024. It is made clear that if any party unjustifiably denies any document(s), then it would be liable to be burdened with costs.

20. List before the Court on 11.12.2024.

I.A. 34821/2024-Stay (Order XXXIX rule 1 & 2 CPC, 1908)

21. The plaintiffs, vide the present application, seek an ex-parte ad- interim injunction against the defendants.

22. As per plaintiffs, the plaintiff no.1, Bentley Systems Inc. is a Delaware based corporation with its principal office in USA and is a leading global provider of infrastructure software solutions to engineers, architects, geospatial professionals, constructors, and owner-operators for CS(COMM) 625/2024 Page 3 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:40 the design, construction and operations of infrastructure. Comprised of integrated applications and services built on an open platform, each solution is designed to ensure that information flows between workflow processes and project team members to enable interoperability and collaboration. Its various software programs are used to designs, engineer, build and operate large, constructed assets such as water distribution networks, roadways, railways, bridges, buildings, industrial plants, power plants and utility networks.

23. As per plaintiffs, few of the plaintiffs' world-renowned software programs are MicroStation PowerDraft, which is computer-aided design (CAD) software that is used for creating precise 2D and 3D drawings for infrastructure projects, and OpenRail Designer, which is an innovative application for preliminary and detailed design of rail infrastructure of all sizes.

24. As per plaintiffs, the plaintiff no.2 is the wholly owned subsidiary of plaintiff no.1 and was set up to carry out business activities and anti- piracy campaigns of plaintiff no.1 in India. The plaintiff nos.1 and 2 operate as a single economic entity for the purposes of software programs of plaintiff no.1's in India.

25. Learned counsel for the plaintiffs submits that the plaintiff no.1 is the owner of the copyright in its software programmes titled MicroStation PowerDraft and OpenRail Designer. The software programmes and all user instruction manuals in respect thereof are "literary works" capable of protection under the Copyright Act, 1957. The same have been created/developed and written for the plaintiffs by their employees, during the course of their employment with the plaintiffs. The plaintiff no.1 is the CS(COMM) 625/2024 Page 4 of 11 This is a digitally signed order.

26. Learned counsel for the plaintiffs also submits that the plaintiff no.1's software programs are licensed through internet delivery, during which process the customer agrees to the terms of an End-User License Agreement (EULA) and/or the Customer Licence and Online Services Agreement (CLOSA) prior to software installation for the requisite number of computers on which the software programme has been loaded/installed for concurrent use at its premises. The plaintiffs maintain an extensive and frequently updated database of all its licensees.

27. As per plaintiffs, the defendant no.1 is the founder and CEO of Atom Aviation Services Private Limited, who is the defendant no.2 in the present case. As per defendant no.2's website www.atomaviation.com, it appears that it is a service based product company specialising in drone survey, mapping and analytics for a wide range of industries, including agriculture, construction, mining and surveying for monitoring, road inspection, smart city planning, mine surveying, industrial assessments, pipeline inspections, agricultural mapping, railway surveys, river mapping, and disaster management.

28. As per plaintiffs, defendants also conduct its business through third- party e-commerce website IndiaMart and other third-party social media websites to connect with potential consumers. In fact, the defendant no.2 is using plaintiffs' software programs i.e., MicroStation and OpenRail Designer without having legal licence of these software programs.

29. As per plaintiffs, in July, 2023 the plaintiffs received an information about the defendants rampantly using pirated/ unauthorized versions of the CS(COMM) 625/2024 Page 5 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:40 various software programmes of the plaintiff no.1, including MicroStation, on their computer systems for business purposes. The plaintiffs then sent cease and desist notice on 26.09.2023 for violation of plaintiffs' copyrights in their software programs, but the defendants did not respond to the same. Subsequent efforts for interacting with the defendants by the plaintiffs did not yield any results.

30. Thereafter, the plaintiffs came across a job posting on defendants' Linkedin page calling for applicants skilled in plaintiff no.1's MicroStation software program. The screenshot of the said job posting is reproduced hereinbelow:

31. Despite once again trying, the plaintiffs heard nothing from the defendants. Then, on 06.05.2024, the plaintiffs' enquiry through the 'phone home' tool , plaintiffs' technology, revealed that the defendants have also been using pirated versions of plaintiffs' software program OpenRail CS(COMM) 625/2024 Page 6 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:40 Designer software program including software add-ins at least on one computer system since March, 2024. 'Phone home' tool captured the WIFI-SSID details as "Atom aviation jio 5ghz" which is the WIFI-SSID of defendant no.2.

32. Learned counsel appearing for the plaintiffs submit that based on the investigation conducted by the independent investigator and the findings of the 'phone-home' technology, the defendants are knowingly using pirated/ unauthorised versions of the software programmes of the plaintiff no.1, specifically MicroStation on at least four computer systems and OpenRail Designer on at least one computer system.

33. Learned counsel appearing for the plaintiffs further submit that defendants' infringing acts not only cause harm to the plaintiffs but also result in unjust enrichment by the defendants by way of use of the unlicensed software programs.

34. This Court has heard the learned counsel for the plaintiffs and perused the documents on record.

35. In view of the aforesaid, since the plaintiff no.1 is the owner of the software programs involved and since they are licensed through internet delivery, during which process the customer agrees to the terms of an End- User License Agreement (EULA) and/or the Customer Licence and Online Services Agreement (CLOSA) prior to software installation for the requisite number of computers on which the software programme has been loaded/installed for concurrent use at its premises, the defendants have no right, title or interest in using the same, particularly since the plaintiffs have not permitted and/ or authorised them to use any of such software programs.

CS(COMM) 625/2024 Page 7 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:40

36. So much so, the plaintiffs' enquiry through the 'phone home' tool, the plaintiffs' technology has also revealed that the defendants have also been using pirated versions of plaintiffs' software program OpenRail Designer software program including software add-ins at least on one computer system since March, 2024. In fact, the 'Phone home' tool captured the WIFI-SSID details as "Atom aviation jio 5ghz" which is the WIFI-SSID of defendant no.2.

37. As such, the carrying out of the business by the defendants on different e-commerce website IndiaMart and other third-party social media websites to connect with potential consumers by the defendant no.2 using the plaintiffs' software programs i.e., MicroStation and OpenRail Designer without having legal licence of these software programs is tantamounting to infringement and passing off. The same cannot be permitted at this stage, especially under the existing circumstances.

38. In view of the aforesaid, the plaintiffs have made out a prima facie case for the grant of an ex parte ad interim injunction with the balance of convenience in favour of the plaintiffs and against the defendants. Additionally, if the defendants are not stopped then there is a likelihood of the plaintiffs suffering irreparable harm, loss and injury.

39. Accordingly, till the next date of hearing, the defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf are restrained from directly or indirectly copying, reproducing, storing, installing and/ or using and/ or pirated/ unlicensed/ unauthorised versions of software program(s) of plaintiff no.1 and/ or committing unauthorised usage of, including but not limited to, MicroStation PowerDraft and OpenRail Designer and its various versions CS(COMM) 625/2024 Page 8 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:40 or any other software programs developed by the plaintiffs in any manner or form that may amount to infringement of the plaintiffs' copyright.

40. Upon filing of the process fee, issue notice to the defendants by all permissible modes returnable before the Joint Registrar on 08.10.2024.

41. Reply, if any, be filed within a period of thirty days from the date of service. Rejoinder thereto, if any, be filed within a period of fifteen days thereafter.

42. The provisions of Order XXXIX Rule 3 CPC be complied within two weeks.

43. List before the Court on 11.12.2024.

I.A. 34822/2024 (Order XXVI Rule 9 CPC, 1908: Appointment of Local Commissioner)

46. The plaintiffs, vide the present application, are seeking appointment of Local Commissioner to visit the premises of the defendants.

47. Learned counsel for the plaintiffs submit that the defendants are blatantly infringing the plaintiffs' copyright in their software programs by using unauthorized/ pirated/ unlicensed copies of the same in conducting their business through their offices in Delhi and illegal activities of the defendants are very difficult to detect unless a concerned individual comes forward and reports them.

48. In light of the aforenoted factual matrix and in order to preserve the evidence of infringement, it is deemed necessary that a Local Commissioner is appointed to visit the premises of the defendants. Accordingly, the following is appointed as Local Commissioner with a direction to visit the premises of the defendants:

S. Name and contact details of Location CS(COMM) 625/2024 Page 9 of 11 This is a digitally signed order.

1. Mr. Satyam Thareja, Adv. E-523, Ramphal Chowk, Sector 7, [+91-9711097019] Dwarka, New Delhi-110075

49. The Local Commissioner to execute the commission at the premises of the defendants with the following directions:-

I. The Local Commissioner be accompanied by the lawyer of the plaintiffs as well as two technical experts. II. Copy of the order be served by the Local Commissioner upon the defendants at the time of execution of the commission. III. The Local Commissioner shall inspect the Hard Disks of the computers, compact discs and/or other storage/replicating media, with the help of Technical Experts of the plaintiffs and determine if the aforesaid storage/replicating media contain pirated/ counterfeit/ unlicensed versions of the plaintiffs' softwares. III. The Local Commissioner with the help of the Technical Experts of the plaintiffs shall prepare audit reports/ license summaries/ inventories of the aforesaid storage/ replicating media. IV. If the computers and/ or other storage/ replicating media of the defendants are password protected, the defendants are directed to make accessible the said password(s) so as to enable the Local Commissioner to execute the commission.

V. The defendants and their representatives are directed to provide full assistance to the Local Commissioner for executing the commission granting access to the server room and providing screenshots of the deployments of plaintiffs' software programs in digital as well as printed form.

CS(COMM) 625/2024 Page 10 of 11

This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:41 VI. The Local Commissioner be permitted to take photographs and videograph the proceedings of the commission, if deems necessary.

VII. To ensure unhindered and effective execution of the commission, the Station House Officer (SHO) of the local police station within whose jurisdiction the premises of the defendants lie, is directed to render all necessary assistance and protection to the Local Commissioner, if and when sought.

VIII. In the event, the Local Commissioner finds the premises of the defendants locked, the same are permitted to break open in the presence of the SHO/ designated police officer.

50. The commission be executed within a period of ten days from today, i.e. on or before 09.08.2024.

51. The fee of the Local Commissioner is fixed at Rupees One Lakh Twenty Thousand Only [Rs.1,20,000/-], to be borne by the plaintiffs and paid in advance. The plaintiffs shall also bear the expenses for travel and other miscellaneous out of pocket expenses for execution of the commission.

52. The report of the Local Commissioner be filed within a period of two weeks from the execution of the commission.

53. A copy of this order be provided to the Local Commissioner named hereinabove.

54. Accordingly, the application is allowed and disposed of.

55. Copy of this order be given dasti.

SAURABH BANERJEE, J JULY 30, 2024/So CS(COMM) 625/2024 Page 11 of 11 This is a digitally signed order.

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/08/2024 at 21:07:41

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Delhi High Court - Orders

Bentley Systems Inc & Anr vs Mr Archit Gupta & Anr on 30 July, 2024