Delhi High Court - Orders
The Foundry Visionmongers Limited vs Lorvens Entertainment (Opc) Pvt Ltd. & ... on 30 January, 2024
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 84/2024
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr. Rahul Beruar, Ms. Jyotsana
Sinha & Mr. Deepesh Bhardwaj,
Advs.
versus
LORVENS ENTERTAINMENT (OPC) PVT LTD. & ANR.
..... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 30.01.2024 I.A. No.2162/2024 (exemption from filing original documents, certified copies, translation, and clear copies)
1. Exemption is granted, subject to all just exceptions.
2. Applicant shall file legible, clear, and original copies of the documents on which the applicant may seek to place reliance within four weeks from today or before the next date of hearing, whichever is earlier.
3. Accordingly, the present application is disposed of. I.A. 2163/2024 (exemption from advance service to defendant)
1. Since there is an urgency in the matter and the same is being heard today, plaintiff is exempted from serving advance notice on the defendant(s) herein.
2. For the reasons stated in the application, the same is allowed and disposed of.
I.A. No.2161/2024 (seeking leave to file additional documents)
1. The present application has been filed on behalf of the plaintiff under Order 11 Rule 1(4) of the Code of Civil Procedure, 1908 ("CPC") as applicable to commercial suits under the Commercial Courts Act, 2015 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 01/02/2024 at 22:41:20 seeking to place on record additional documents.
2. The plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018.
3. Accordingly, the present application is disposed of. I.A. 2164/2024 (exemption from instituting pre-litigation mediation)
1. 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., FAO (COMM) 128/2021, exemption from attempting pre-institution mediation is allowed.
2. Accordingly, the application stands disposed of. I.A. 2165/2024 (under section 151 CPC for extension of time for filing court fee)
1. Subject to plaintiff depositing requisite court fee within a period of one week from today, the application is allowed.
2. Application stands disposed of.
CS (COMM) 84/2024
1. Let the plaint be registered as a suit.
2. Upon filing of process fee, issue summons to the defendants by all permissible modes. Summons shall state that the written statements be filed by the defendants within 30 days from the date of receipt of summons. Along with the written statements, the defendant shall also file affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record.
3. Liberty is given to the plaintiff to file a replication within 30 days of the receipt of the written statements. Along with the replication, if any, filed by the plaintiff, affidavit of admission/denial of documents filed by the 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 01/02/2024 at 22:41:20 defendants, be filed by the plaintiff, without which the replications shall not be taken on record.
4. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
5. List before the Joint Registrar for marking of exhibits on 8th April, 2024.
6. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
I.A. 2159/2024 (under Order XXXIX Rules 1 & 2 CPC)
1. This application has been filed as part of the present suit for a decree of permanent injunction restraining defendants, their agents, franchisee, 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 the plaintiff, including 'NUKE', 'NUKE X', 'NUKE STUDIO' and its various versions or any software programs developed by the plaintiff in any manner that may amount to infringement of plaintiff's original copyrighted software programs and software related documentation.
2. It is stated by the plaintiff that it is a company incorporated under the laws of England and Wales having its registered office at Birmingham, United Kingdom. Plaintiff was established in the year 1996 and is a leading innovator of Visual Effects ("VFX") and Image Processing technologies used in motion pictures, animations, etc. Plaintiff has developed its flagship software program called 'NUKE' which is a software product delivering various features for ensuring high quality visual effects. Various variants of its NUKE software program inter alia 'NUKE X', 'NUKE STUDIO'. Copyrights in these software programs, including instruction 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 01/02/2024 at 22:41:20 manuals, are capable of protection under the Copyright Act, 1957. The said software programs were first published in the United Kingdom and the plaintiff has copyright registrations in the USA as well, the earliest being since 2011. Plaintiff claims protection in India on the basis of India being a signatory to the Berne Convention for the Protection of Literary and Artistic Works, 1886, Universal Copyright Convention, 1952, and World Trade Organization.
3. Counsel for the plaintiff has pointed out that the licensing process of plaintiff's software programs is through an End-User-License Agreement ("EULA") and only after such authorised license, the software is installed. Plaintiff's software has been pirated on a number of previous occasions and counsel for the plaintiff has pointed out to various injunction orders delivered by this Court inter alia in:
CASE NO. ORDER DATED
CS (COMM) 355/2023 26th May, 2023
CS (COMM) 236/2023 27th April, 2023
CS (COMM) 107/2023 27th February, 2023
4. It is stated that the plaintiff has been using an inbuilt technology called "phone home" through which they are able to track infringement or unlicensed/unauthorised use of plaintiff's software(s) by verifying whether the said software(s) are being used in accordance with the terms of the EULA.
5. In late December, 2023, based upon an information received, plaintiff carried out an investigation where it was discovered that defendant no.1 company, which is based out of Vishakhapatnam, Andhra Pradesh, and also operating from Chennai, was using the plaintiff's software(s) without 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 01/02/2024 at 22:41:20 licence or any authorisation. Unlicensed/unauthorised use of the plaintiff's software(s) was also evident from perusal of defendant no.1's LinkedIn profile available on www.linkedin.com/company/lorvens-entertainment-pvt-ltd as also its website www.lorvensentertainment.com. As per report of Ministry of Corporate Affairs, Government of India ("MCA"), defendant no.2 was the director of defendant no.1 company till 7th December, 2023 and continues to be a producer till date.
6. The details of the infringement which was tracked by the plaintiff is available in the chart under:
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 01/02/2024 at 22:41:20 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 01/02/2024 at 22:41:21
7. As per the plaintiff's internal infringement database, a total number of 1546 infringement hits were generated from May, 2022 till January, 2024 from a particular IP address which was tracked through defendant no.1's 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 01/02/2024 at 22:41:22 office pursuant to an independent investigation initiated by the plaintiff. Thus, the plaintiff has filed the present suit seeking appropriate relief against the defendants, against use of pirated/unlicensed/unauthorised copies of plaintiff's software(s).
8. Based on these facts and circumstances, this Court is satisfied that the plaintiff has made out a prima facie case for grant of an ex-parte ad interim injunction till the next date of hearing. Balance of convenience lies in favour of the plaintiff, and the plaintiff is likely to suffer irreparable harm in case the ad interim injunction, as prayed for, is not granted.
9. Accordingly, till the next date of hearing, ex-parte ad interim injunction is passed against the defendants with the following directions:
a. Defendants, their agents, franchisee, 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 the plaintiff, including 'NUKE', 'NUKE X', 'NUKE STUDIO' and its various versions or any software programs developed by the Plaintiff in any manner that may amount to infringement of plaintiff's original copyrighted software programs and software related documentation;
b. Defendants, their agents, franchisee, servants and all others acting for and on their behalf are restrained from formatting the computer systems and/or erasing any data, log files, installations etc. pertaining to the infringed software of the plaintiff including 'NUKE', 'NUKE X' and 'NUKE STUDIO' software and its various versions or any software programs developed by it.
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 01/02/2024 at 22:41:22
10. On steps being taken by the plaintiff, issue notice to defendant through all permissible modes including speed post, courier and email. Affidavit of service along with proof thereof be placed on record before the next date of hearing.
11. Reply, if any, be filed within three weeks with advance copy to the counsel for the plaintiff, who may file rejoinder thereto, if any, before the next date of hearing.
12. Compliance with Order XXXIX Rule 3, CPC be effected within 10 days of filing of Report of the Local Commissioner as directed in I.A. 2160/2024.
13. List on 30th April, 2024.
I.A. 2160/2024 (for appointment of local commissioner)
1. This application has been filed by the plaintiff for appointment of a Local Commissioner to visit the premises of the defendants to take necessary steps in order to ensure discontinuance of the alleged piracy of software(s) 'NUKE', 'NUKEX', and 'NUKE STUDIO' ["plaintiff's software(s)"] taking place in the premises of the defendants.
2. In order to preserve evidence of infringement, it is necessary that a Local Commissioner is appointed to visit the premises of the Defendant. Accordingly, Mr. Varyam Pandey, Advocate, address - 116, D-4, Mayur Vihar Phase I, Delhi -91; email - [email protected]; Mobile - 8860599006 is appointed as the Local Commissioner with a direction to visit the defendants' premises situated at 1st & 3rd Floor, No.11, Vishwanathan Street, RA Puram, Chennai - 600028, India and carry out the following mandate:
a. The Local Commissioner, along with a responsible officer of the plaintiff, a technical expert of the plaintiff, and plaintiff's counsel, 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 01/02/2024 at 22:41:23 shall be permitted to enter the said premises, inspect the hard disks of the computers, compact disks and other storage/replicating media with the help of the technical expert for the purpose of verifying if any unauthorised/unlicensed software programmes of the plaintiff have been loaded/installed/accessed on the said devices.
b. Local Commissioner shall, with the help of the technical expert, make an inventory/audit report of the computer/digital devices where the plaintiff's software(s) are found to be used. The Local Commissioner shall take screenshots of the same and duly document the number and nature of devices on which the plaintiff's software is resident. The responsible officer of the plaintiff (who shall take personal liability to suffer consequences in case the affidavit is found false), shall also file an affidavit in respect of the infringements (if any found), detailing the plaintiff's software(s) and the devices on which it is found. c. Further, the Local Commissioner shall be permitted to undertake/arrange for photography/videography for the purpose of execution of the Commission. In this regard, plaintiff as well as the defendants shall render full assistance to the Local Commissioner for carrying out the aforesaid directions. d. In the event any computer system is password-protected, defendants or their representatives/ employees shall provide particulars of password to the Local Commissioner/technical expert so as to enable execution of the Commission. e. To ensure unhindered and effective execution of this order, the Station House Officer ("SHO") of the local police station within 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 01/02/2024 at 22:41:23 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.
f. In the event the Local Commssioner is informed of any other location/premises in Chennai where the defendant carries out operations relating to the alleged infringement, the said premises may also be entered and directions as given in the paras above regarding the execution of the Local Commission may be implemented there as well.
3. The execution of the Commission shall take place on or before 7th February, 2024 between 10 am to 5pm.
4. The fee of the Local Commissioner is fixed at Rs. 1,25,000/- (One lakh twenty-five thousand only), which is to be borne by the plaintiff. Plaintiff shall also bear expenses for travel and lodging of the Local Commissioner and other miscellaneous out-of-pocket expenses for the execution of the Commission. Fee of the Local Commissioner shall be paid in advance.
5. Local Commissioner shall file their report within four weeks from the date of execution of the commission.
6. Registry is directed to not upload a copy of this for a period of two weeks from the date of execution of the Commission.
7. In terms of the foregoing, the application stands disposed of in the above terms.
8. Dasti under the signature of the Court Master.
ANISH DAYAL, J JANUARY 30, 2024/sm/sc 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 01/02/2024 at 22:41:23