Delhi High Court - Orders
The Foundry Visionmongers Limited vs Digikore Studios Private Limited & Anr on 15 December, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 655/2021
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Shantanu
Sahay, Mr. Rohan Sharma, Mr.
Deepesh Bhardwaj and Mr. Apoorv
Bansal, Advocates.
versus
DIGIKORE STUDIOS PRIVATE LIMITED & ANR. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 15.12.2021
[VIA HYBRID MODE]
I.A. 16725/2021 (u/ Order XI Rule 1 (4) & Section 151 of the Code of Civil Procedure, 1908 [hereinafter "CPC"] r/w Commercial Courts Act, 2015 for filing additional documents)
1. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015 [hereinafter "the Act"].
2. The Plaintiff, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act.
3. Accordingly, the application stands disposed of.
I.A. 16726/2021 (for exemption from filing originals, certified copies, clearer copies, translated copies, left side margins, affirmed affidavits, electronic documents etc.)
4. Exemption is granted, subject to all just exceptions.
Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 1 of 6 Signing Date:15.12.2021 18:26:005. The Plaintiff shall file better copies of exempted documents, compliant with practice rules, before the next date of hearing.
6. Accordingly, the application stands disposed of.
I.A. 16727/2021 (u/ Section 12A of the Act r/w Section 151 of CPC seeking exemption from pre-institution mediation)
7. Having regard to the facts of the present case, exemption from attempting pre-institution mediation is allowed.
8. Accordingly, the application stands disposed of.
CS(COMM) 655/2021
9. Let the plaint be registered as a suit.
10. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
11. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/ denial of documents of the Defendants be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within these timelines.
12. List before the Joint Registrar for marking of exhibits on 24th February, 2022. It is made clear that any party unjustifiably denying Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 2 of 6 Signing Date:15.12.2021 18:26:00 documents would be liable to be burdened with costs.
13. List before Court on 26th April, 2022 for framing of issues thereafter.
I.A. 16724/2021 (under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC)
14. This application seeking temporary injunction under Order XXXIX Rules 1 and 2 of CPC is accompanying the suit filed for permanent injunction and restraining of the infringement of copyright, rendition of accounts of profits, damages, among other ancillary reliefs, against the Defendants, who are using unauthorized/ pirated version of the Plaintiff's software programs- "NUKE" and "NUKE X".
15. The case as set out in the plaint is that the Plaintiff is the owner of the copyright in its software programmes including- "NUKE", "NUKE X", "NUKE STUDIO" and "NUKE RENDER". NUKE is Plaintiff's flagship software programme for rendering visual effects. The said software is a powerful compositing product that delivers unparalleled speed and a first-class feature set that is unrivalled in the desktop market. The software provides state of the art tools designed to streamline day-to-day workflow and ensure highest quality visual effects. The software programs and all user instruction manuals included with it are "literary works" capable of protection within the meaning of the Copyright Act, 1957 [hereinafter "Copyright Act"]. The same have also been created/ developed and written for the Plaintiff by its employees, during the course of their employment with the Plaintiff. The Plaintiff is the "first owner" of the copyright as defined under the Copyright Act in respect of the aforesaid software.
Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 3 of 6 Signing Date:15.12.2021 18:26:0016. The Plaintiff has spent and continues to spend millions of U.S. dollars annually in research and development of new software products. The Plaintiff's software programs are licensed through internet delivery, during which process, the customer agrees to the terms of an End-User License Agreement [hereinafter "EULA"] prior to software installation for the requisite number of computers on which the software has been loaded/ installed for concurrent use at its premises. The Plaintiff maintains an extensive and frequently updated database of all its licensees. Due to the highly sought-after nature of the Plaintiff's software programs, software piracy has always been a concern. In order to keep piracy in check, a security mechanism is used by the Plaintiff, colloquially known as "phone home" technology, which is built into the Plaintiff's software, which verifies whether the Plaintiff's software is being used in accordance with the terms of the EULA.
17. Mr. Pravin Anand, learned counsel for the Plaintiff submits that as per the said anti-piracy tool, the Plaintiff has recorded infringement hits of the illicit use of its software by the Defendants. He draws the attention of this Court to the table extracted in para 34 of the Plaint, wherein the instances of infringements have been recorded. There are a total of 43 infringement hits generated against at least 24 computer systems of the Defendants. He further submits that the said infringement hits have been generated against the domain "DIGIVFX.GW". In light of this fact, Mr. Anand contends that Defendants have been found to be knowingly using pirated/ unauthorised versions of the Plaintiff's "NUKE" and "NUKE X" software programs, rather than procuring genuine licenses. They have thereby infringed the Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 4 of 6 Signing Date:15.12.2021 18:26:00 Plaintiff's copyright subsisting in the aforesaid software programs.
18. In view of the material placed on record, the Plaintiff has established a prima facie case in its favour. The balance of convenience also lies in favour of the Plaintiff and irreparable loss would be caused to it in case an ex-parte ad-interim injunction is not granted. Accordingly, till the next date of hearing, it is directed that the Defendants, their principal officers, directors, agents, franchisees, servants and all others acting for and on their behalf at Defendants' premises are: -
(i) Restrained from directly or indirectly using for any kind of computer related activities or otherwise in any other manner, any pirated/ unlicensed/ unauthorized software programs of the Plaintiffs or reproducing and distributing any pirated/ unlicensed/ unauthorized software of the Plaintiffs in contravention of the terms of the End User License Agreement(s) or infringing in any other manner or causing or enabling or assisting others to infringe the copyrights of the Plaintiffs including "NUKE" and "NUKE X" software and its various versions or any other software programs developed by the Plaintiff in any manner that may amount to infringement of the Plaintiff's copyright subsisting in its software programs and software related documentation, and
(ii) Restrained from directly or indirectly formatting the computer systems and/or erasing any data, log files, installations, etc. pertaining to assisting others to infringe the copyrights of the Plaintiff subsisting in its software programs and software related documentation including "NUKE" and "NUKE X" software and its various versions Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 5 of 6 Signing Date:15.12.2021 18:26:00 or any other software programs developed by the Plaintiff.
19. List before the Joint Registrar on 24th February, 2022.
20. List before the Court on 26th April, 2022.
SANJEEV NARULA, J DECEMBER 15, 2021 nd Signature Not Verified Signed By:SAPNA SETHI CS(COMM) 655/2021 Page 6 of 6 Signing Date:15.12.2021 18:26:00