Delhi District Court
Dassault Systemes S.E And Ors vs Daechang India Seat Company P. Ltd. And ... on 5 June, 2024
IN THE COURT OF SH. LOKESH KUMAR SHARMA
DISTRICT JUDGE (COMMERCIAL COURTS)-05,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
CS (COMM) 31/2020
CNR No. DLST01-000645-2020
Dassault Systemes S.E And Ors.
Address At:-
10, Rue Marcel Dassault,
78140, Velizy Villacoublay, France
2) Dassault Systemes India P Ltd
Address At:-
M-13, Lower Ground Floor,
South Extension Part-2,
New Delhi-110049 ..... Plaintiff
Versus
1.Daechang India Seat Company Pvt. Ltd.
Address at -
No 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram, TN-602150
2) Shinyoungjin, Director Address at -
No 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram, TN-602150 CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 1 of 18
3) J S Lee, Director Address at -
No. 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram, TN-602150
4) J O Heesun, Director Address at -
No. 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram, TN-602150
5) Jae Hee Kim, Director Address at -
No. 491, Mannur Village, Valarpuram, Post Sriperumbudur Taluk, Kancheepuram TN-602150
6) Won Kyungna, Director Address at -
No. 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram TN-602150
7) Kyoungmin Cho, Director Address at -
No. 491, Mannur Village, Valarpuram, Post Sriperumbudur, Taluk Kancheepuram TN-602150
8) Tanu Puri, Director Address at -
No. 491, Mannur Village ,Valarpuram, Post Sriperumbudur, Taluk Kancheepuram TN-602150 .... Defendants CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 2 of 18 Institution of the Suit : 22.01.2020 Arguments concluded on : 27.05.2024 Judgment pronounced on : 05.06.2024 Ex- P A R T E J U D G E M E N T
1. This suit for permanent injunction is filed by the plaintiff for restraining infringement of copyright, delivery up, rendition of accounts of profits, damages, etc. against defendant.
2. Brief facts:- As per plaintiff no. 1, who is Dassault Systemes S.E., having its Corporate HQ at 10, Rue Marcel Dassault, 78140 Velizy Villacoublay, France, and also having its registered office at M-13, Lower Ground Floor, South Extension Part-2, New Delhi-110049. Ms. Harpreet Oberoi was stated to be authorized by the Plaintiff vide Power of Attorney dated 21.02.2018 to sign, verify and institute the case.
Plaintiffs were stated to be one of the world's largest organization in 3D and Product Lifecycle Management (PLM) solutions, which helped businesses around the globe, to digitally define and simulate products. Initially they used to design complex shapes, 3D, and then made it possible to design and manufacture products through digital mockups. It was stated that the Dassault Systems (Plaintiff Groups) applications had provided new CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 3 of 18 opportunities to use 3D representation for online lifelike experiences to enhance real life living spaces and every day products. Their products anticipated the industrial processes of future, by providing a 3D view of a product's lifecycle from creation to maintenance, including manufacturing and recycling.
It was stated that Plaintiffs No. 1 & 2's portfolio consisted of CATIA for designing the virtual product, SOLIDWORKS for 3D Mechanical Design, DELMIA for Virtual production, SIMULIA for virtual testing, ENOVIA for global collaborative lifecycle management, 3DVIA for online 3D lifelike experiences, GEOVIA for virtual planet, EXALED for data in business. The aforesaid products and services had played a key role in transforming businesses in manufacturing industries. These products were built around an open platform, attracted loyalty and integrated seamlessly with other Dassault System's brands and enabling businesses of all sizes to design virtual products, from the simplest to the most complex.
It was stated further that Plaintiffs No.1 & 2 had a mandatory licensing system for all their products and maintained complete record of each and every licensed user of their products. They sold their products through their authorized distributors/resellers and the plaintiffs could check their database CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 4 of 18 by inputting the name of the company or the serial number of the product to check whether the reported usage was licensed or not.
It was stated that their Research and Development (R&D) operations were continuously expanding to support the ever-growing demand for new information technologies. They spent millions of US Dollars every year in advertising and promotion of their products all over the world and their global revenue sales were stated to be millions of US Dollars and sometimes Billions of US Dollars.
It was averred that the Plaintiffs No.1 and 2 as well as their various subsidiaries were the collective owners/proprietor of copyright in the software programs as "computer programmers"
within the meaning of Section 2 (ffc) of the Copyright Act 1957 and were included in the definition of a 'literary work' as per Section 2(o) of the Act.
Plaintiffs No.1 & 2 were stated to have been deeply impacted by the infringement of the copyright in their computer programs and piracy in their software programs, which caused grave injury to their business interests.CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 5 of 18
It was stated that Plaintiffs computer programs were considered as "works" which had been firstly published and registered in USA and also registered under Indian Copyright Act 1957. Both the computer programs as well as supplementary User Instructions and Manuals, were considered 'original literary works' as contemplated under Section 2(o) and Section 13(1) (a) of the [Indian] Copyright Act 1957.
It was stated further that the rights of authors from member countries of the Berne Convention, Universal Copyright Conventions and the WTO (World Trade Organization) Agreement, were protected under Indian Copyright Law as though their works were first published in India. Since, India, France, USA and Canada were signatories to the Berne Convention, Universal Copyright Convention and the WTO Agreement, Plaintiff's No.1 & 2's works were protected in India under Section 40 of the Copyright Act 1957, read in conjunction with the International Copyright Order 1999.
It was averred further that Plaintiffs No.1 & 2 being the owners of copyright 'literary works' within the meaning of Section 17 of the Copyright Act 1957, were entitled to all the exclusive rights under Section 14 of the Copyright Act, inter alia:CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 6 of 18
a. The right to reproduce the work in any material form including storing it in any medium by electronic means;
b. To issue copies of the work;
c. To make an adaptation or translation of the work; d. For a computer program, the additional right to sell or give on commercial rental, or offer for sale or commercial rental, any copy of the computer program;
e. The right to authorize the doing of any of the aforesaid acts.
It was also averred that u/s 51 (a) (i) of the Copyright Act, copyright was considered infringed when any person without a license from the owner of the copyright, did or performed anything, the exclusive rights of which vested in the owner of Copyright.
It was stated that under the Copyright Act 1957, computer programs had been treated as a unique class of work and use of pirated software program amounted to Copyright infringement due to unauthorized reproduction at the time of installation and during the use, unauthorized temporary/ephemeral copies of the computer program would have been made on the Random Access Memory (RAM) of the computer, amounting to additional unauthorized reproduction.CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 7 of 18
End User piracy was stated to be the most damaging form of software piracy and it occurred when businesses, Corporations, Companies, Institutions, Schools, Non-Profit Organization etc., made additional copies of Plaintiff's software without any authorization.
3. Defendant no. 1. Daechang India Seat Company Private Limited was stated to be having its offices at No 491, Mannur, Village Valarpuram, Post Sriperumbudur, Taluk Kancheepuram ,TN-602150, India, as per its website and engaged in this business with a qualitative range of industrial products Flexible plastic tube hose not reinforced, no fitting, Insul and implemented to become the best car seat frame maker.
Defendant No. 2 Mr. Shinyoungjin was the Managing Director of Defendant No.1 Company and Defendant No. 3 to Defendant No. 8, were the Directors of Defendant No.1's Company and all the Defendants were responsible for unauthorized and illegal use of the Plaintiffs' software. The cause of action was stated to have arisen out of the same act or transaction or series of acts.
It was averred that the Plaintiffs received evidence of the infringement through the in-built security mechanisms of the software ,which had been technically generated and to confirm the aforesaid information, the Plaintiff No.1 & 2 had checked the CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 8 of 18 database of their registered users and found that the Defendants had not made any volume purchase of its product and thus Defendants were indulging in multiple unlicensed/pirated use of the Plaintiff Companies software "CATIA R21 - 5 machines".
It was averred further that the software "phone home"
was essential software programs for verifying whether Plaintiff's software was being used in accordance with the terms of the EULA and/or the CLOSA by capturing and recording information about the usage of the software program by the host and the computer on which it had been installed and used and thereafter this information was transmitted to the servers of plaintiff, which automatically cross-checked the details of the software and the computer system on which it was installed. If the software was being used with an unauthorized licence key, then the mechanism logged the information as an incident report of an "infringement hit".
It was stated that the plaintiffs through their authorized representatives and attorney had made several efforts to resolve the matter amicably by issuing legal notice and sending several emails to the defendants and specifically mentioned about the over- deployment of Dassault Systemes Catia in the email dated 13.11.2018, but Defendants had neither denied nor replied the same.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 9 of 18It was stated that after several repeated reminders to the defendants via telephone and emails, the plaintiffs had sent Cease and Desist Notice on 22.11.2018 and on 07.03.2019 and thereafter filed the present suit.
The following products of the plaintiff were stated to have been infringed, which had caused irreparable loss and damage to the Plaintiffs :
S. Egress IP No of Date of Last Product
No. Infringement Infringement
Hits
1 42.104.85.90 344 11 July '19 CATIA
2 103.110 241.45 - 07 July 19 CATIA
3 160.238.75.46 - 02th July 19 CATIA
4 1.187.111.156 - 31 May 19 CATIA
It was stated that u/s 63B of the Copyright Act, 1957, use of unlicensed software constituted a criminal offence. The Plaintiffs reserved their legal rights and registered an FIR against the Defendants and their Directors u/s 63B of Copyright Act, 1957 along with section 406 Indian Penal Code, 1860. If Defendants tempered the evidence, then Plaintiffs reserved the right to seek the help from Forensic Experts to initiate additional charges under sections 201 and 204 of Indian Penal Code, 1860.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 10 of 18 It was submitted further that the illegal activities of the defendants had caused extreme losses in revenue as well as erosion of goodwill to the plaintiffs.
4. The cause of action was stated to have arisen firstly in the year 2017, when the plaintiffs received information about the illegal use of their software by the Defendants. The cause of action was stated to be still continuing and subsisting in favor of the Plaintiffs and against the Defendants.
5. Since the Plaintiff No. 2 was carrying on its business activities within the jurisdiction of this Court through their offices located at M-13, Lower Ground Floor, South Extension, Part-2, New Delhi-110049, hence this court was stated to have territorial jurisdiction to try and decide the present suit by virtue of Section 62(2) of the Copyright Act of 1957.
6. In the light of the aforesaid facts and circumstances, the plaintiffs had prayed for passing of a decree in favour of Plaintiff and against the defendant detailed as hereunder:-
a. A decree of permanent injunction restraining the Defendants, their directors, officers, agents, franchisees, servants and all others acting on their behalf, from directly or indirectly copying, reproducing, storing, installing and/or using pirated/unlicensed software programs of CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 11 of 18 Plaintiff No. 1 including CATIA 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 Plaintiff 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 rendition of accounts of profits illegally earned by the Defendants by reason of infringement of the Plaintiffs copyrights, including conversion damages which were presently indeterminate and a decree be passed against the Defendants in the sum of the amount so ascertained;
d. An order for damages that covers value of software and infringement to be paid by the Defendants in total on account of infringement of the Plaintiffs copyright and also for loss of sales and reputation;
e. An order for costs of proceedings.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 12 of 18
7. Notice of this suit was issued to defendants, however, they could not served as the summons were received back unserved with the remark of "no such person".
Defendants were later on served by way of publication in the newspaper "Times of India/Kanchipuran and Thinaboomi"
dated 13.10.2023 and 14.10.2023 respectively but they had also failed to cause their appearances to duly contest the present suit. Accordingly, they were proceeded ex-parte on 31.10.2023.
8. In its ex-parte evidence, plaintiff had examined one Ms. Harpreet Oberio, as PW-1 who had placed on record, her affidavit Ex. PW1/A in her examination-in-chief reiterating the factual averments of the plaint on solemn affirmation and had also placed on record the following documents:-
1. Copy of Power of Attorney dated 21.02.2018 Ex. PW1/1
2. Copy of copyright certificates for major products such as CATIA Ex. PW1/2.
3. Copy of Customer License and Online Services Agreement Ex. PW1/3.
4. Copy of Sample Infringement Pointers of the unauthorised license of CATIA Ex. PW1/4.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 13 of 18
5. Copy of Research Dossier Infringement report of unauthorised license of CATIA Ex. PW1/5.
6. Emails of several dates addressed to defendants Ex. PW1/6.
7. Copy of the Cease-and-Desist notice Ex.PW1/7.
8. Copy of the Infringement analysis report Ex.PW1/8.
Since none had appeared on behalf of the defendants being ex-parte, hence this witness was not cross-examined on their behalf.
In its further ex-parte evidence, plaintiff had again examined Ms. Harpreet Oberio, as PW-1 who had placed on record, her additional affidavit Ex. PW1/B in her examination-in-chief and reiterated the factual averments of her plaint on solemn affirmation and had also placed on record documents: Ex. PW1/3 and Ex. PW1/9, which was a list of shareholding of plaintiff no. 2, downloaded from the website of Ministry of Corporate Affairs. (MCA).
9. Thereafter Plaintiff's evidence was closed.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 14 of 18
10. I have heard the arguments advanced at length at bar by Sh. Dinesh Jotwani, Ld. counsel for the plaintiff and also perused the material available on record.
It has been argued and submitted by Ld. Counsel Sh. Dinesh Jotwani that since the claim of the plaintiff had remained uncontested and testimony of PW1 has gone unrebutted and unchallenged, hence plaintiff is entitled to all the reliefs as claimed in the plaint, which has also been duly proved by supporting documents exhibited during the evidence of Plaintiff's AR.
A careful examination of the record reveals that plaintiff had appointed Smt. Harpreet Oberio as its Attorney along with Sh. Dinesh Jotwani vide GPA Ex. PW1/1 dated 12.11.2019, meaning thereby that the Attorney herein, who happens to be from a law firm namely "Jotwani Associates" operating from 66, National Park, Lajpat Nagar-IV, New Delhi-24, was in no manner whatsoever connected with the day to day functioning or operations of the plaintiff company prior to the said date nor PW-1 was supposed to have acquired any knowledge in her capacity of being an Attorney in respect of the incidents that had taken place in the year 2017, when she was in no manner whatsoever connected with the affairs of Plaintiffs company.
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 15 of 18 Going by the claim made in the suit, the violation was detected in the year 2017 and the e-mails were also sent in the year 2018 as well as the cease and desist notice dated 22.11.2018 and 07.03.2019, when admittedly the present AR was not authorized to represent the Plaintiff.
Furthermore, it is to be seen that the violation/infringement of copyright has been alleged in the suit in respect of software CATIA, whereas the plaintiff holds the copyright in respect of name CATIA V5-6R2013 (CATIA V5 R23). Though the Ld. Counsel Sh. Dinesh Jotwani, during the course of arguments had submitted that the infringed software is the improvised version of the original software, however, nothing has been brought on record to show, if the defendants were sold any of the original software, which was being pirated by them or if not so sold, then how the defendants had acquired an access to the plaintiff's software.
In view of the settled legal preposition with regard to the capacity of Attorney and the extent of his deposition as laid down by the Hon'ble Apex Court in "Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors", decided on 06.12.2004, wherein the Apex Court had inter-alia held as infra:
CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 16 of 18 "The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain &Ors. AIR 1998 Raj. 185. It was held that the word "acts" used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC".
It seems that the present witness of the plaintiffs had deposed as if she herself had done all the acts and had even deposed about the incidents that had taken place much prior to her appointment as an attorney of the Plaintiff.
Although the IP addresses of the Computers as detailed in the chart were stated to be belonging to the defendant but no iota of evidence has been adduced on record to show that the computer systems with those IP addresses either existed or were used by the defendants for the purpose of their business activities.
In view of the settled legal preposition as discussed above, that an Attorney can only depose about the facts and acts which were either done or witnessed by him as Attorney of the CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 17 of 18 Principal and cannot replace the Principal and depose on his behalf, I have no hesitation in holding that the witness examined by the Plaintiff and evidence adduced by her on record cannot be considered at all, hence plaintiff has miserably failed to substantiate and prove the allegations as contained in the Plaint even by preponderance of probabilities. Suit is accordingly dismissed with no order as to costs. Decree sheet be drawn accordingly.
21. File be consigned to record room after completion of necessary legal formalities in this regard.
ANNOUNCED IN THE OPEN COURT DATED:05.06.2024 Digitally signed LOKESH by LOKESH KUMAR KUMAR SHARMA SHARMA Date:
2024.06.05 16:37:37 +0530 (Lokesh Kumar Sharma) District Judge (Commercial Court)-05 South/Saket/New Delhi CS (COMM)31/20 Dassault Systemes S.E &Ors. Vs. Daechang Indiaseat Company P. Ltd. & Ors Page 18 of 18