Delhi High Court - Orders
The Foundry Visionmongers Limited vs Team Vfx Artist Private Limited & Anr on 3 June, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 429/2022
THE FOUNDRY VISIONMONGERS LIMITED ..... Plaintiff
Through: Mr. Pravin Anand, Mr. Shantanu
Sahay and Mr. Apoorv Bansal, Advocates.
versus
TEAM VFX ARTIST PRIVATE LIMITED & ANR...... Defendants
Through: None.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 03.06.2022 I.A. 9657/2022 (seeking leave to file additional documents, by Plaintiff)
1. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1(4) CPC.
2. 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.
3. Application is allowed and disposed of.
I.A. 9658/2022 (exemption, by Plaintiff)
4. Subject to the Plaintiff filing originals, clearer copies and documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.
5. Application is allowed and disposed of.
I.A. 9659/2022 (exemption from service to Defendants, by Plaintiff)
6. Since there is an urgency in the matter and the matter is being heard today, Plaintiff is exempted from serving advance notice on Defendants.
Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 1 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:227. For the reasons stated in the application, the same is allowed and disposed of.
CS(COMM) 429/2022
8. Let plaint be registered as a suit.
9. Upon filing of process fee, issue summons to the Defendants, through all permissible modes, returnable before the learned Joint Registrar on 08.08.2022. Summons shall state that the written statement shall be filed by the Defendants within 30 days from the receipt of summons. Along with the written statement, Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff.
10. Replication be filed by the Plaintiff within 15 days of the receipt of the written statement. Along with the replication, an affidavit of admission/denial of documents filed by the Defendants, shall be filed by the Plaintiff.
11. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
12. List before the Court on 07.10.2022.
I.A. 9655/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)
13. Present application has been preferred by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure 1908 for grant of ex-parte ad-interim injunction.
14. Issue notice to the Defendants through all prescribed modes, returnable on 07.10.2022.
15. It is averred that the Plaintiff was established in the year 1996 and is a leading innovator of Visual Effects (VFX) and Image Processing technologies for motion pictures, animations, commercials, broadcast post-
Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 2 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22production, among others. Plaintiff is a rapidly growing Company and has hundreds of employees distributed between its offices in London, Los Angeles and Mountain View, California. Plaintiff's software programmes have gained popularity worldwide and have a well-established client base such as Warner Bros, The Moving Picture Company, Weta Digital, Framestore, Sony Pictures Imageworks and Digital Domain.
16. It is further averred that Plaintiff carries on business in India, that is, inter alia, sale and distribution of its NUKE software programmes through Ark Infosolutions Pvt. Ltd. located at New Delhi, which is Plaintiff's authorized reseller/distributor/reseller for various versions of NUKE software programmes.
17. It is further averred that ARK Infosolutions Private Limited is a Company incorporated under the laws of India and is a leading value-added distributor for various Technology Products in India in industry segments. ARK is involved in the business of reselling/distributing software licenses of various software programmes of Plaintiff and has been the exclusive reseller/distributor of Foundry's software programmes in India since its incorporation in 2012 and is responsible for providing support and assistance to such license holders in India. ARK is also responsible for assisting Plaintiff in enforcement of its Intellectual Property Rights in India. In view of the same, Plaintiff and ARK operate as a single economic entity for purposes of software programmes of Plaintiff in India.
18. It is further averred that Plaintiff's software programmes touch most Bollywood and Hollywood blockbusters that reach theatre screens, as well as numerous television and commercial productions. Plaintiff's software Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 3 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22 programmes have revolutionised the entire concept of animation by providing magnificent visual effect sequences on features.
19. It is further averred that NUKE is Plaintiff's flagship software programme for rendering Visual Effects. The Software NUKE is primarily 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.
20. It is further averred that Plaintiff is the owner of copyright in its software programs including "NUKE", "NUKE X", "NUKE STUDIO" and "NUKE RENDER". Plaintiff's software programs, and all user instruction manuals included with it are "literary works" capable of protection within the meaning of the Copyright Act, 1957 and the same have also been created, developed and written for Plaintiff by its employees, during the course of their employment with the Plaintiff.
21. It is further averred that Plaintiff's aforementioned software programs were first published in the United Kingdom. Plaintiff also has copyright registrations for various versions of its software program "NUKE" in United States of America. The copyrights of Plaintiff are recognized in India by virtue of the Section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999 and Plaintiff enjoys copyright protection in its software programs in India under the provisions of the Copyright Act, 1957.
22. It is further averred that Plaintiff is the owner of Copyright in its software programs developed and marketed by it. These software programs are "Computing Programs" within the meaning of section 2 (ffc) of the Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 4 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22 Copyright Act 1957 and are included in the definition of literary work as per section 2(o) of the Act.
23. It is further averred that Plaintiff has spent and continues to spend millions of U.S. Dollars annually in research and development of new software products and discovering new technologies, and further expends large sums of money to update the same regularly. Plaintiff further invests millions of U.S. Dollars annually towards advertising and promotion of its products which translates into millions of dollars in global revenue sales. Plaintiff's primary source of revenue that makes its business viable is the license fee generated from grant of licenses in its software programs.
24. It is further averred that Defendant No. 1, Team VFX Artist Private Limited was founded in the year 2012 and incorporated in the year 2020. Defendant No. 1 claims to offer services of VFX rotoscopy, paint, match move, composting, etc. pertaining to animation & Visual Effects industry.
25. It is further averred that Defendant No. 1 maintains an interactive website www.teamvfxartist.com which contains information about their VFX animation related services. In addition to the said website, Defendant No. 1 maintains profile/account/webpage on third-party social media websites www.linkedin.com. The third-party social media website provides the Defendant No. 1 with a platform to promote products/services and to connect with potential consumers.
26. It is further averred that Defendants had earlier purchased a total of 3 licenses of Plaintiff's NUKE X software which include 2 Permanent Licenses and 1 Rental License and the said licenses of the Defendants are subsisting.
Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 5 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:2227. It is further averred that Plaintiff in the month of May 2022 was informed that Defendants have been using Plaintiff's NUKE and NUKE X software over and above their license entitlements. Plaintiff, thereafter, checked its phone-home portal for instances of infringement, which revealed that Defendants have been using pirated/unauthorized versions of Plaintiff's NUKE and NUKE X software programs on at least 8 additional computer systems, over and above their license entitlements.
28. It is further averred that Plaintiff apprehends that large scale piracy is being carried out at Defendants' premises. The phone-home portal of the Plaintiff is only able to trace infringement hits coming from 8 computer systems, whereas, as per information retrieved by the Investigator, Defendant No. 1 Company is using Plaintiff's NUKE and/or NUKE X software on as many as 45 computer systems. It is stated to be verily believed that Defendant No. 1 Company has installed pirated/unauthorised versions of Plaintiff's software programs on more than 8 computer systems and is using them without connecting the same to internet, in order to evade the security mechanism embedded in Plaintiff's software programs.
29. It is further averred that Defendants have been found to be knowingly using pirated/unauthorised versions of Plaintiff's NUKE and NUKE X software programs rather than procuring genuine licenses of the aforesaid software programs and have infringed Plaintiff's copyright subsisting in the said software programs. Defendants have till date not taken steps to pay the license fee to cover their unauthorized use of Plaintiff's NUKE and NUKE X software.
30. Having heard learned counsel for the Plaintiff, this Court is of the view that Plaintiff has made out a prima facie case for grant of ex parte ad-
Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 6 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22interim injunction. Balance of convenience lies in favour of the Plaintiff and it is likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.
31. Accordingly, Defendants, their agents, franchisees, servants and all others acting for and on their behalf are restrained from directly or indirectly copying, reproducing, storing, installing and/or using pirated/unlicensed software of the Plaintiff software including "NUKE", "NUKE X" and its various versions in contravention of the terms of the End User License Agreements or any other software programs developed by Plaintiff in any manner that may amount to infringement of Plaintiff's copyright subsisting in its software programs and software related documentation, till the next date of hearing.
32. Plaintiff shall comply with the provisions of Order 39 Rule 3 CPC within one week from the date of execution of the commission. I.A. 9656/2022 (appointment of Local Commissioner, by Plaintiff)
33. Present application has been preferred by the Plaintiff under Order 26 Rule 9 read with Section 151 CPC, seeking appointment of a Local Commissioner.
34. Upon hearing, the application is allowed.
35. Accordingly, Ms. Saumya Tandon, (Mobile No.9810907029) is appointed as a Local Commissioner, who shall visit the premises of the Defendants at the following address:-
"No.27, 2nd Floor, New MGR Road, Kandanchavadi, Perungudi, Chennai, Tamil Nadu - 600096"
36. Local Commissioner shall visit the aforesaid premises and inspect the hard-disk of the computers, compact discs and/or other storage/replicating Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 7 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22 media, with the help of technical experts and representative(s) of the Plaintiff and also prepare audit reports/license summaries/inventories of the same relating to Plaintiff's software programs being the subject matter of the present suit. In case any assistance is required to access the computers, etc. requisite information/assistance shall be rendered by the Defendants/their technical experts with respect to passwords, etc.
37. Local Commissioner along with the Representative of the Plaintiff and/or its counsel shall be permitted to enter the premises of the Defendants, as aforementioned.
38. Local Commissioner shall be permitted to take photographs/videos of the execution of the Commission. She shall also be entitled to seek police assistance or protection of the Local Police Station, if so required, for the purpose of execution of the order of this Court. The SHO of the concerned Police Station is directed to provide necessary assistance to the Local Commissioner, if sought for.
39. In case the premises as aforementioned are found locked, the Local Commissioner is at liberty to break open the locks.
40. Plaintiff shall serve a copy of this order upon the Defendants along with paper book of the suit at the time of execution of the proceedings.
41. Fee of the Local Commissioner is fixed at Rs.1,50,000/- in addition to travel, boarding and lodging expenses as well as other miscellaneous out-of- pocket expenses for the execution of the Commission. Fees of the Local Commissioner shall be paid in advance by the Plaintiff.
42. Report of the Local Commissioner shall be filed within two weeks of the execution of the Commission.
Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 8 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:2243. Plaintiff shall inform the Registry about the execution of the proceedings by the Local Commissioner and only thereafter Registry shall issue summons of the suit to the Defendants.
44. This order shall not be uploaded on the website of this Court till execution of the Commission by the Local Commissioner.
45. Application is disposed of.
46. Copy of this order be given to learned counsel for the Plaintiff dasti under the signatures of the Court Master.
JYOTI SINGH, J JUNE 03, 2022/sn Signature Not Verified Digitally Signed CS(COMM) 429/2022 Page 9 of 9 By:KAMAL KUMAR Signing Date:22.07.2022 18:45:22