Busy Infotech Pvt. Ltd vs Xpert Tricks Softwares & Ors on 28 October, 2022

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Delhi High Court - Orders

Busy Infotech Pvt. Ltd vs Xpert Tricks Softwares & Ors on 28 October, 2022

Bench: Jyoti Singh

                          $~20
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +     CS(COMM) 747/2022

                                BUSY INFOTECH PVT. LTD.                 ..... Plaintiff
                                             Through: Mr. Sidharth Chopra, Mr. Nitin
                                             Sharma, Ms. Deepika Pokharia and Mr. Naman
                                             Tandon, Advocates.

                                                    versus

                                XPERT TRICKS SOFTWARES & ORS.                          ..... Defendants
                                              Through: None.

                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                    ORDER

                          %                         28.10.2022
                          I.A. 17494/2022 (Exemption)

1. Subject to the Plaintiff filing original, certified, clear, legible copies of the documents with proper margins, which it may seek to place reliance on, within four weeks from today, exemption is granted.

2. Application is allowed and disposed of.

I.A. 17493/2022 (Additional Documents)

3. Present application has been preferred on behalf of the Plaintiff seeking leave to file additional documents under Order 11 Rule 1(4) CPC.

4. 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.

5. Application is allowed and disposed of.

Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 1 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08

CS(COMM) 747/2022

6. Let plaint be registered as a suit.

7. Upon filing of process fee, issue summons to the Defendants, through all permissible modes, returnable on 09.01.2023 before the learned Joint Registrar.

8. 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 filed by the Plaintiff.

9. 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.

10. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines. I.A. 17492/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)

11. 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 an ex parte ad-interim injunction.

12. Issue notice to the Defendants through all prescribed modes, returnable on 17.02.2023, before the Court.

13. Present suit has been filed seeking permanent injunction restraining Defendants No. 1 to 16 and 25 and all others acting on their behalf from reproducing, storing, installing or using any pirated or unlicensed version of Plaintiff's BUSY software and its various versions or editions resulting in copyright infringement. Restraint is also sought from infringement of the Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 2 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08 registered trademark 'BUSY'.

14. Plaintiff, incorporated in 1997 is stated to be a leading on-premise ERP (Enterprise Resource Planning) and Accounting Software Company dealing in software development and marketing. It is averred that Plaintiff has been the pioneer in leading the industry through major changes and amendments in the regulatory and statutory framework and with the introduction of Value Added Tax (VAT) in 2005 in Delhi, Plaintiff was amongst the first software Companies to provide a VAT-compliant software and likewise in 2017 for GST.

15. It is stated that BUSY, a GST/VAT compliant Business Accounting Software is the flagship product of the Plaintiff with over 300,000 licenses sold in over 20 countries. All computer programmes i.e. software products including BUSY are sold with a 'soft' version of the Software License Agreement, Registration Card and relevant User Manuals, all contained in the original CD-ROM carrying the actual software. As per the terms of the agreement, license to use the software becomes valid only after full payment has been realised by the Plaintiff and for use of the software it is mandatory to enter into the License Agreement.

16. It is averred that Plaintiff is the owner of the copyright in the software BUSY as the same falls with the definition of 'computer programmes' under Section 2(ffc) of the Copyright Act, 1957 (hereinafter referred to as the 'Act') and constitutes 'literary work' as defined under Section 2(o) of the Act. Plaintiff, being the owner of the copyright within the meaning of Section 17 of the Act is entitled to exclusive rights under Section 14 of the Act.

Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 3 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08

17. It is further stated that Plaintiff coined and adopted the trademark BUSY in and around 1997, for use in connection with its software programmes and over the years has adopted and used its several variants and formatives. Plaintiff has obtained registration in the device mark BUSY in class 09 and its applications for registration of the word mark as well as for other formatives have been accepted and advertised. Being distinctive, invented and coined, the trademark BUSY is entitled to a high-degree of protection.

18. It is averred that Plaintiff owns and operates dedicated websites www.busywin.com and www.busy.in and also has significant social media presence on various platforms such as Facebook, YouTube, etc. the astounding reputation of Plaintiff's product and services is best illustrated by the magnitude of its ever increasing sales turnover which as an illustration for the financial year 2021-22 is Rs. 45,99,54,096/-.

19. It is the case of the Plaintiff that Defendants No. 1 to 16 and 25 are infringing the valuable intellectual property rights of the Plaintiff for commercial gains by knowingly violating the copyright in the computer programmes not just by making unauthorize use of the same but also by installing illegal copies of the software onto multiple computer systems. Plaintiff has learnt that the said Defendants have sold approximately 48,000 infringing copies of Plaintiff's BUSY software, which are actively being used by end consumers. The users of such unlicensed/licensed software versions are using the authorisation key(s) which are not generated by the Plaintiff. Defendant No. 1 is providing direct payment links toward purchase of pirated version of the software and is also offering 'crack' versions of the same. Defendants No. 2 to 5 are third parties sharing videos enabling Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 4 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08 violation of Plaintiff's copyright and trademark BUSY through YouTube, the links to which have been furnished in the plaint. Defendants No. 6 to 8 are groups operating on Telegram wherein the unlicensed/crack versions of Plaintiff's software are being offered. Defendants No. 9 to 16 are third parties operating websites which offer the unlicensed versions and enable violation of Plaintiff's rights. Defendants No. 1 to 16 have not been authorised in any manner by the Plaintiff to offer, sell or market the software BUSY.

20. It is contended by learned counsel for the Plaintiff that Defendants No. 1 to 16 and 25 are violating the intellectual property rights of the Plaintiff for commercial gains. Software industry generally sustains on a viable licensing system and software development Companies such as the Plaintiff spends substantial amount of money merely on research and development so that consumers may have a better choice of more advance software. Rampant piracy/unlicensed use of such software deprives the Plaintiff a right to commercially exploit its work and also has a cascading effect on the industry. All licensed versions need to be registered and Plaintiff provides a serial number and an activation key which is entered on the computer system in which the software is installed and will work only on the computer in which the software is installed. It is obvious that Plaintiff's unlicensed software is in use by various end users having bought such unlicensed software from the said Defendants.

21. It is further contended that Defendants have no justification for adopting Plaintiff's trademarks for their products/services and the adoption is to ride upon the impeccable reputation of the Plaintiff for commercial gains. With the similarity of the rival trademarks with respect to the software Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 5 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08 programmes it is inevitable that the consumers will be confused into believing that the software programmes emanate from the Plaintiff. The misrepresentation is adversely affecting the reputation of the Plaintiff since the unlicensed software often contains malware and viruses and are not covered by the warranties which are offered by the Plaintiff. The impugned action of the Defendants amounts to infringement of copyright and trademarks as well as passing off and is leading to erosion of Plaintiff's reputation, dilution of its trademarks and financial loss.

22. 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- interim 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.

23. Accordingly, till the next date of hearing, Defendants No. 1 to 16 and 25, their associates, partners, agents, franchisees, representatives, servants, licensees and all others acting for and on their behalf or anyone claiming through Defendants No. 1 to 16 and 25 are restrained from in any manner:

a. reproducing/storing/installing/issuing copies/selling/offering for sale/downloading and/or using any pirated/unlicensed/crack version of Plaintiff's BUSY software and its various versions/editions, resulting in infringement of Plaintiff's copyright;

b. using the trademark 'BUSY' or any deceptive variant thereof, which is identical to or deceptively and confusingly similar to Plaintiff's trademark 'BUSY', in respect of their products or services amounting to infringement of Plaintiff's registered Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 6 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08 trademark(s);

c. using the trademark 'BUSY' or any deceptive variant thereof, which is identical to or deceptively and confusingly similar to Plaintiff's trademark 'BUSY', in respect of their services or products amounting to passing off Plaintiff's goods and services.

24. Defendant No. 17 is directed to take down the infringing videos of Defendants No. 2 to 5 and any other videos being uploaded by Defendant No. 25, relevant links of which are given hereunder:-

i. https://www.youtube.com/watch?v=8DS3pyXYt7I; ii. https://www.youtube.com/watch?v=Cw_LU1Op4Nw; iii. https://www.youtube.com/watch?v=h4PSQLDpInw&t=56s;

and iv. https://www.youtube.com/watch?v=8meFFeOKssE.

25. Defendant No. 17 is directed to disclose complete details (such as name, address, email, phone number, etc.) of Defendants No. 2 to 5.

26. Defendant No. 18 is directed to block/suspend the following groups being https://t.me/busycrackfree2, https://t.me/busycrackfree and https://t.me/busycracklatest, operated by Defendants No. 6 to 8 and/or any other group being operated by Defendant No. 25.

27. Defendant No. 18 is directed to disclose complete details (such as name, address, email, phone number, etc.) of Defendants No. 6 to 8.

28. Defendant No. 20 is directed to suspend/block the domain names https://miraclecrack.com and http://www.seniorcracks.com/.

29. Defendant No. 20 is directed to disclose complete details (such as name, address, email, phone number, etc.) of the Registrants of the domain Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 7 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08 names https://miraclecrack.com and http://www.seniorcracks.com/.

30. Defendant No. 21 is directed to suspend/block the domain names https://crack-pedia.com/, https://crackbuilder.net and https://ittechgyan.com.

31. Defendant No. 21 is directed to disclose complete details (such as name, address, email, phone number, etc.) of the Registrants of the domain names https://crack-pedia.com/, https://crackbuilder.net and https://ittechgyan.com.

32. Defendant No. 22 is directed to suspend/block the domain name https://piratewares.com/.

33. Defendant No. 22 is directed to disclose complete details (such as name, address, email, phone number, etc.) of the Registrant of the domain name https://piratewares.com/.

34. Defendant No. 23 is directed to suspend/block the domain names https://modcrack.net.

35. Defendant No. 23 is directed to disclose complete details (such as name, address, email, phone number, etc.) of the Registrant of the domain name https://modcrack.net.

36. Defendant No. 24 is directed to block/suspend the mobile number +91-7033623289 and disclose complete details (such as name, address, email, phone number, etc.) of the Registrant of Phone No. +91-7033623289.

37. Plaintiff shall comply with the provisions of Order 39 Rule 3 CPC within two weeks from today.

JYOTI SINGH, J OCTOBER 28, 2022/rk Signature Not Verified Digitally Signed CS(COMM) 747/2022 Page 8 of 8 By:KAMAL KUMAR Signing Date:31.10.2022 19:14:08

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Delhi High Court - Orders