Delhi High Court - Orders
Sap Se vs Erp Training India & Ors on 4 June, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 156/2020
SAP SE .....Plaintiff
Represented by: Mr.Ranjan Narula, Mr.Shashi P. Ojha
and Ms.Payal Kalhan, Advocates.
versus
ERP TRAINING INDIA & ORS. ..... Defendants
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 04.06.2020 The hearing has been conducted through Video Conferencing. I.A. 4233/2020 (under Order XI Rule 1 Commercial Courts Act- exemption from filing clear copies of the documents) Allowed, subject to all just exceptions.
I.A. 4235/2020 (exemption from filing duly notarised affidavits and filing the suit papers) I.A. 4236/2020 (exemption from filing court fees)
1. Exemption is allowed, subject to the condition that plaintiff will file the affidavit in support of plaint and the applications and the court fees within 72 hours from the resumption of the normal Court functioning.
2. Application is disposed of.
I.A. 4232/2020 (under Order XI Rule 1(4) Commercial Courts Act)
1. Additional documents, if any, be filed within 30 days.
2. Application is disposed of.
CS(COMM) 156/2020 Page 1 of 6I.A. 4234/2020 (under Section 80 (2) CPC -exemption from giving notice to defendant Nos.33 and 34)
1. By this application, plaintiff seeks exemption from issuance of notice under Section 80 CPC to defendant Nos.33 and 34 who are the Department of Telecommunication (DOT) and Ministry of Electronics and Information Technology (MEITY) respectively.
2. Considering the urgency involved in the suit, the plaintiff is exempted from issuing notice under Section 80 CPC to defendant Nos.33 and 34.
3. Application is disposed of.
CS(COMM) 156/2020 & I.A. 4231/2020 (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 on the plaintiff taking steps through email and speed post, returnable before Court on 19th August, 2020.
3. On receipt of the summons in the suit and notice in the application, written statement to the plaint shall be filed by the defendants within 30 days. Replication be filed within three weeks thereafter. Reply affidavit to the application be filed within four weeks. Rejoinder affidavit be filed within three weeks thereafter.
4. According to the plaintiff, it is a company incorporated in Germany. The plaintiff company coined, adopted and commenced the use of the trademark „SAP‟ in the year 1972. Plaintiff is into the software development programme and in the year 1979 the plaintiff introduced SAP R/2 software followed by plaintiff obtaining a copyright registration for R/3 System in USA. SAP India Pvt. Limited which was incorporated on 14 th March, 1996 CS(COMM) 156/2020 Page 2 of 6 under the Indian Companies Act is the plaintiff‟s Indian subsidiary. Plaintiff has obtained registration of its trademark „SAP‟ in India Class-9 on 9th July, 1992. Plaintiff is the sole owner of the copyright of the software certification and training material, developed and marketed by it including inter alia SAP HANA, SAP CRM, SAP ABAP, SAP ERP 6.0, SAP Net Weaver and SAP ERP 2005.
5. Grievance of the plaintiff is that the defendant Nos.1, 2 and 3 by themselves and through their agents and assignees being defendant No.4 impleaded as Ashok Kumar are indulging in the infringement of the plaintiff‟s trademark and copyrights by offering unauthorised SAP online training on various courses along with remote SAP server access from their websites without having entered into any education license agreement with the plaintiff. The defendants clandestinely are avoiding their liability by not storing pirated material on their computer system and are engaging the brokers which use dynamic IP to hide their identity and location of the pirated software. It is the case of the plaintiff that defendant Nos.1, 2 and 3 are based in Hyderabad and are operating in connivance with each other and the unknown defendant No.4 for offering SAP training courses online. Plaintiff thus prays that once details of these brokers who have been impleaded as defendant No.4 are available he would implead the same as further defendants.
6. In order to verify the acts of the defendants, plaintiff‟s representative deposited a fee of ₹4,500/- in the bank account of defendant No.1 and purchased server access of SAP S4 HANA 1809 software offered by defendant No.1. In the process plaintiff was also able to take the bank account details of the defendant No.1 being Tella Rama Krishna, Account CS(COMM) 156/2020 Page 3 of 6 No.058801517183 with the IFSC Code as ICIC0000588. After the purchase of the software the plaintiff issued several cease and desist notices to the defendant Nos. 1 to 3 from December, 2019 to January, 2020 however, the defendant Nos.1 to 3 themselves and through their agents/brokers who have been impleaded as defendant No.4 did not refrain from their activities.
7. Considering the material placed on record, plaintiff has made out a prima facie case in its favour and in case no ad-interim injunction is granted the plaintiff would suffer an irreparable loss. Balance of convenience also lies in favour of the plaintiff and against the defendants.
8. Consequently, till the next date of hearing, defendant Nos.1, 2 and 3, their proprietors, agents, officers, servants etc. are restrained in terms of sub- para (a) and (b) of para-18 of the application.
9. Defendant No.5 is directed to deactivate the email accounts "[email protected],[email protected] and sapvits.saptraining@ gmail.com" in terms of sub-para (d) of para-18 of the application.
10. Defendant Nos.6 to 10 are also directed to deactivate, disable the website and domain names: <www.erptrainingindia.com/>, <www.hyderabadglobaltechsolutions.in> and <www.sapvits.com> in terms of sub-para (e) of para-18 of the application.
11. Defendant Nos.11 to 32 are directed to block the services and disable the access provided to defendant Nos.1, 2 and 3 by blocking the websites, URLs and respective IPs as mentioned in prayer (f) of para-18 of the application which are as follows:
S. DOMAIN NAME URL IP ADDRESS
CS(COMM) 156/2020 Page 4 of 6
No.
DEFENDANT NO.1
1. www.erptrainingindia.com/ http://erptrainingindia.com/ 166.62.6.79
DEFENDANT NO.2
2. www.hyderbadglobaltech http://hyderabadglobaltechsolutions.in/ 66.199.188.195
solutions.in
DEFENDANT NO.3
3. www.sapvits.com http://sapvits.com/ 68.66.216.28
12. Defendant No.35 is directed to freeze the account of defendant No.1 with the name „Tella Rama Krishna‟, Account No.058801517183 and the IFSC Code is ICIC0000588, branch address No.101-102, Ground Floor, Shri Kalki Towers, Plot No.20, Opp Huda Bus Stop, NH-9, Chandanagar, Hyderabad-500050.
13. Defendant No.36 is also directed to freeze the account of defendant Nos.1 and 2 so as to restrain them from using defendant No.36‟s platform for aiding collection of money.
14. Defendant Nos.37 and 38 are also directed to deactivate the social media accounts of defendant Nos.1 and 3 through which they have been advertising and promoting their infringing activities and providing training using SAP material such as Twitter, LinkedIn as under:
DEFENDANT NO.1 Twitter https://www.linkedin.com/in/rama-krishna-aa407324/ LinkedIn https://twitter.com/KPHBRK DEFENDANT NO.3 Twitter https://twitter.com/sapvits/ LinkedIn https://www.linkedin.com/company/vintageitsolutions/?trk=similar-
companis_org_title CS(COMM) 156/2020 Page 5 of 6
15. Compliance under Order XXXIX Rule 3 CPC be made within one week.
16. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
JUNE 04, 2020 'vn' CS(COMM) 156/2020 Page 6 of 6