Delhi High Court
Microsoft Corporation & Anr vs Deepak & Anr on 23 February, 2015
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :23.02.2015
+ CS(OS) 314/2012
MICROSOFT CORPORATION & ANR
..... Plaintiffs
Through Ms. Jaya Negi and Mr. Ravin,
Advs.
versus
DEEPAK & ANR
..... Defendants
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. Present suit has been filed by the plaintiffs (Microsoft Corporation) against the defendants seeking permanent injunction, infringement of copyright, delivery up, rendition of accounts, damages, etc.
2. Plaintiff No. 1 is Microsoft Corporation, a company registered under the laws of State of Washington, USA. Plaintiff No. 2 Microsoft CS(OS) No.314/2012 Page 1 of 6 Corporation India Pvt. Ltd is wholly owned subsidiary of plaintiff No. 1. It has its registered office at Nehru Place. Plaintiff No. 2 was set up in 1989 to provide marketing, promotion, antipiracy awareness campaigns and action and channel development support to plaintiff No. 1/its affiliates. The products of plaintiff No. 1 are distributed in New Delhi through various authorized distributors.
3. Plaintiff No.1 is the biggest software publisher for personal and business computing in the world. It is engaged in the development, manufacture, licensing and support of a range of software products for various computing devices. Plaintiff No. 1 is also manufacturing a large number of computer peripherals (hardware). It has built up its reputation for technological expertise in hardware over the years by building a series of technological devices.
4. The software programs developed and marketed by the plaintiffs is a 'computer program' within the meaning of Section 2 (ffc) of the Copyright Act, 1957. Computer programs of the Plaintiff are 'works' as per Section 2(o) of the Act and are registered in USA.
5. Defendant No. 2 M/s Divya Computer, located at Mangaldas House, Lamington Road, Mumbai is a business entity engaged in CS(OS) No.314/2012 Page 2 of 6 marketing and selling of computer hardware including branded computers and peripherals. Defendant No.1 is its proprietor. In January, 2012, the plaintiffs received information and the investigations also revealed that the defendants were infringing the plaintiffs' copyright and other intellectual property rights by carrying on the business of unauthorized Hard Disk Loading of the Plaintiffs' software programs on to the branded computers sold by them to their customers. The said unlicensed software programs were not accompanied by any original Certificate of Authenticity (COA) label.
6. On 08.02.2012, an ex-parte ad-interim order had been obtained in favour of the plaintiffs and the defendants, their directors, officers, agents etc were restrained from using, copying, selling, distributing, counterfeited/ licensed software of plaintiff No.1 including Microsoft Office 2010, Microsoft Windows 7 and their various versions or in any other manner infringing the copyright of the plaintiffs in their computer programs. Vide order dated 08.02.2012, a Local Commissioner had also been appointed to visit the shop of the defendants at M/s Divya Computers, Shop No. 1, ground floor, building No. 395, Mangaldas House, Lamington Road, Mumbai.
CS(OS) No.314/2012 Page 3 of 6
7. The Local Commissioner has since submitted her report.
8. The Local Commissioner has reported that the defendants on being asked to produce the license of their software programs stated that it did not have any license thereby affirming the stand of the plaintiffs that the defendants were selling and distributing the computer programs which were the pirated version of the plaintiffs' software programs.
9. The defendants were proceeded ex-parte vide order dated 09.01.2013. Ex-parte affidavit by way of evidence of PW-1 Col. J.K. Sharma and PW-2 Kishore Anand, Chartered Accountants of the plaintiffs company has been perused. The plaintiffs have been able to establish their case. They have been able to establish that the defendants were pirating the plaintiffs' software programs by uploading them in the computers which were being sold by them to their customers without license and permission of the plaintiff.
10. The plaintiffs are accordingly entitled to the decree as prayed for. The defendants, their directors, officers, servants and agents are accordingly restrained from using, copying, selling, offering for sale, distributing, unauthorized Hard Disk Loading, issuing to the public, CS(OS) No.314/2012 Page 4 of 6 counterfeited/unlicensed versions of Microsoft Office, 2010, Microsoft Windows 7 and any other infringing material belonging to the Plaintiffs.
11. Learned counsel for the plaintiffs has made a claim for punitive damages. Submission being that some kind of deterrent should be imposed upon such erring defendants who are flagrantly disobeying the orders of the Court and in spite of interim injunction, continue to infringe the products of the plaintiffs.
12. In 2006 (33) PTC 683 (Del) Asian Paints (India) Ltd. Vs. Balaji Paints and Chemicals and Ors. where the defendant was ex parte; in a claim for damages a Bench of this Court had granted damages to the plaintiff including costs of the suit. This Court is inclined to follow the ratio of the said judgment which while granting damages in this context had noted as under:
"The result of the actions of defendants is that plaintiffs, instead of putting its energy for expansion of its business and sale of products, has to use its resources to be spread over a number of litigations to bring to book the offending traders in the market."
13. The plaintiffs are accordingly entitled to damages quantified at Rs.1 lac in their favour and against the defendants on account of CS(OS) No.314/2012 Page 5 of 6 infringement of the aforenoted copyright. Cost of the suit also be granted in favour of the plaintiffs. They are also entitled to the delivery of the impugned (finished and unfinished) material lying with the defendants which is violative of the copyright of the plaintiffs.
14. Suit disposed of in the above terms.
INDERMEET KAUR, J FEBRUARY 23, 2015 A CS(OS) No.314/2012 Page 6 of 6