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Copies Of Paper-Book) Sap Se vs Intellipaat Software Solutions Pvt. ... on 5 August, 2020

Author: Mukta Gupta

Bench: Mukta Gupta

$~2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(COMM) 303/2020
      I.A. 6558/2020 (under Order XXXIX Rule 1 and 2 CPC)
      I.A. 6559/2020 (under Order XI Rule 1 (4) Commercial Courts Act)
      I.A. 6560/2020 (under Order XI Rule 1 Commercial Courts Act)
      I.A. 6561/2020 (under Section 80 (2) CPC)
      I.A. 6562/2020 (exemption from filing notarised affidavits, physical
      copies of paper-book)

      SAP SE                                                 ..... Plaintiff
                    Represented by:   Mr.Ranjan Narula, Advocate with
                                      Mr.Shashi P.Ojha, Ms.Payal Kalhan,
                                      Advocates.

                         versus

      INTELLIPAAT SOFTWARE SOLUTIONS
      PVT. LTD. & ORS.                            ...... Defendant
                Represented by: Mr.Mohit Goel, Advocate with
                                Mr.Sidhant Goel, Mr.Aditya Goel and
                                Mr.Faizan Nazir Mir, Advocates for
                                D1

      CORAM:
      HON'BLE MS. JUSTICE MUKTA GUPTA
                         ORDER

% 05.08.2020 The hearing has been conducted through video conferencing. I.A. 6560/2020 (under Order XI Rule 1 Commercial Courts Act)

1. Exemption is allowed subject to just exceptions.

2. Application is disposed of.

I.A. 6562/2020 (exemption from filing notarised affidavits, physical copies of paper book etc.) CS(COMM) 303/2020 Page 1 of 6 IA 6563/2020 (for exemption from Court fees)

1. Considering the Covid-19 situation, the plaintiff is exempted from filing notarised affidavits in support of the plaint and applications, physical copies of paper book as also the Court fees at this stage and the same be filed within one week of the resumption of the normal Court functioning.

2. Applications are disposed of.

I.A. 6559/2020 (under Order XI Rule 1 (4) Commercial Courts Act)

1. Additional documents, if any be filed within thirty days.

2. Application is disposed of.

I.A.6561/2020 (under Section 80 (2) CPC)

1. By this application, the plaintiff seeks exemption under Section 80(2) CPC from issuing notice to the defendant Nos. 25 and 26 who are the Department of Telecommunications and Ministry of Electronics & Information Technology.

2. Considering the urgency involved, the plaintiff is exempted from issuing notice to the defendant Nos. 25 and 26.

3. Application is disposed of.

CS(COMM) 303/2020 I.A. 6558/2020 (under Order XXXIX Rule 1 and 2 CPC)

1. Plaint be registered as a suit.

2. Issue summons in the suit and notice in the application to the defendants. Learned counsel for the defendant No. 1 accepts summons in the suit and notice in the application.

3. Written statement and reply affidavit in the suit and application along with the affidavits of admission-denial will be filed within thirty days.

Replication and rejoinder affidavit along with the affidavit of admission- denial within three weeks thereafter.

4. Plaintiff has filed the present suit impleading 26 defendants, out of which, the defendant No. 1 is one who is allegedly infringing the plaintiff's rights in its various software programmes under the name 'SAP', defendant Nos. 2 to 24 are the intermediaries and defendant Nos. 25 and 26 are the Departments of Union of India.

5. Case of the plaintiff is that the plaintiff company which was incorporated in Germany, coined and adopted the use of the trademark SAP in the year 1972. In the year 1979, the plaintiff introduced SAP R/2 software programmes. Plaintiff's Indian subsidiary i.e. SAP India Private Ltd. was incorporated on 14th March, 1996. In the meantime, plaintiff was granted registration of the mark SAP on 9th July, 1992 under class 9.

6. Grievance of the plaintiff is that the defendant No. 1, without seeking any licence from the plaintiff is using its SAP programmes and thereby infringing the plaintiff's rights in the registered mark SAP and violating its copyrights in the programmes. The plaintiff issued a cease and desist notice to the defendant No. 1 on 16th August, 2019 notifying the plaintiff's rights in the trademark SAP and the copyright in its softwares and confidential materials. On 11th September, 2019, defendant No. 1 responded to the notice stating that they were not using any of the copyright material of SAP and the complete course material had been developed by the Trainers hired by the defendant No. 1. However, defendant No. 1 wilfully continued to unauthorizedly offer online training for various SAP Modules, videos bearing SAP logo being uploaded on their website www.intellipaat.com. However, despite the plaintiff's number of endeavours to resolve the matter CS(COMM) 303/2020 Page 3 of 6 with the defendant No. 1, there was no amicable resolution. In June 2020, it again came to notice of the plaintiff that the defendant No. 1 was again illegally using SAP programmes. Thus one of the plaintiff's representative managed to get enrolled for the SAP HANA online training programmes who paid the amount for the programme as well which was accepted by the defendant No.1

7. In view of the practice directions issued by this Court for hearing through video conferencing, advance intimation of the suit and applications along with the copy thereof had been sent to the defendant No. 1. Learned counsel for the defendant No. 1 enters appearance and states that the defendant No. 1 has never infringed the trademark of the plaintiff and that the defendant was never violating the plaintiff's copyrights in the SAP software programmes, however, still, the defendant No. 1 on receipt of the plaint and the documents therewith, has removed all the software programmes from the online classes of the defendant No. 1. Learned counsel further states that the defendant No. 1 is willing to resolve the matter with the plaintiff.

8. Considering the averments in the plaint as also the documents filed therewith, this Court finds that the plaintiff has made out a prima facie in its favour and in case no ad-interim ex-parte injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff. Consequently, an ad-interim injunction is granted in favour of the plaintiff and against the defendants in terms of prayers (a), (b) and (c) of IA 6558/2020 till the next date of hearing before this Court. In view of the undertaking on behalf of the defendant No. 1 that the defendant No. 1 will be removing all the alleged infringing material from the website CS(COMM) 303/2020 Page 4 of 6 of the defendant as also from third party platform where unauthorized use of the SAP programmes are going on within 72 hours, at this stage, this Court is refraining from passing any ad-interim order in terms of prayer (e), (f) and

(g) of the application. However, if within 72 hours, the alleged infringing material is not removed from the website of the defendant No. 1 as also from the platforms of third parties, the plaintiff would be at its liberty to again approach this Court.

9. Learned counsel for the defendant No. 1, during the course of arguments stated that the defendant No. 1 has actually purchased the licences from a third party in respect of the plaintiff's copyright material. Defendant No. 1, on affidavit will disclose the identity and contact details/addresses of the said third party who is issuing the licences on behalf of the plaintiff as also the copy of the licence agreements which the defendant No. 1 claims to have obtained from the third party. The defendant No. 1 alongwith its written statement and reply affidavit to the application will also file its statement of accounts w.e.f. 16 th August, 2019 in a sealed cover in respect of its earnings from the use of various SAP software programmes.

10. List the suit and application before this Court on 22nd October, 2020.

11. At this stage, since the parties are agreeable to reconcile their disputes by mediation, the authorized representatives of the plaintiff and defendant No. 1 are directed to appear before the Delhi High Court Mediation and Conciliation Centre on 10th August, 2020 at 3 pm in the first instance and thereafter, as and when directed by the learned Mediator.

12. Awaiting the report of the learned Mediator, list on the date fixed before this Court.

13. Order be uploaded on the website of this Court.

MUKTA GUPTA, J.

AUGUST 05, 2020 akb CS(COMM) 303/2020 Page 6 of 6