Delhi High Court
Adobe Systems Inc & Ors vs Mr K. Kannan & Another on 23 March, 2009
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 365/2000
%23.03.2009 Date of decision: 23rd March, 2009
ADOBE SYSTEMS INC & ORS ....... Plaintiffs
Through: Mr Praveen Anand, Advocate
Versus
MR K. KANNAN & ANOTHER ....... Defendants
Through: Ex parte.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. M/s Adobe Systems Inc, USA , M/s Autodesk Inc, USA and Microsoft Corporation instituted the present suit, inter alia, on the ground that the defendant No.2 company and of which the defendant No.1 was the marketing executive is engaged in the business of, inter alia, hard disk loading i.e., pre loading various pirated and unlicensed software of the plaintiff companies free of costs on the computers that were being assembled and sold by them and as an incentive to customers to purchase the said machines from them. Vide ex parte order dated 21st February, 2000 the defendants were restrained from copying, selling, offering for sale, distributing, issuing to CS(OS)365/2000 Page 1 of 7 the public pirated/counterfeit/unlicensed version of the plaintiffs' software as listed in the plaint.
2. The said order continues till date. The defendants appeared and filed their written statements and on 21st February, 2006 the following issues were framed:
1. Whether this court had the territorial jurisdiction to entertain the matter?
2. Whether the plaintiff is entitled to club the cause of action arising under the Trademarks Act 1955 and the Copyright Act 1956 together the for purposes of filing the present suit?
3. Whether a purported single transaction carried out by a decoy could be the sole basis for the cause of action against the defendants?
4. Whether the present suit is maintainable keeping in view that the norms laid down for such decoy suits have not been followed?
5. Whether the fact of belated examination of the computer system by the technical expert, long after it was delivered to him vitiates the evidence?
6. Whether the attorney acting on behalf of the plaintiff may perform dual role of counsel and constituted attorney for the plaintiff?
7. Whether the plaintiffs own the copyrights and trademarks which are the subject matter of the present suit?
8. Whether the defendants have infringed the copyrights of the plaintiffs as subsisting in their software Programmes?
9. Whether the defendants have infringed the registered Trade Marks of the plaintiffs?
10. Whether the defendants have passed off counterfeit/unlicensed versions of the plaintiffs' software as genuine goods of the plaintiffs' CS(OS)365/2000 Page 2 of 7 software as genuine goods of the plaintiffs as alleged in the plaint?
11. Whether the plaintiffs are entitled to the relief as prayed for in the plaint?
3. The defendants however thereafter stopped appearing and were proceeded against ex parte on 2nd November, 2007 and remain ex parte. The plaintiffs have led ex parte evidence by filing affidavits by way of examination-in-chief of its constituted attorney Mr Anand Banerjee, of Mr Rajesh Satwah who had on behalf of the plaintiffs visited the premises of the defendants at Chennai and of a Chartered Accountant Mr Sanjeev Sharma, limited to the aspect of damages. The evidence remains unrebutted.
4. The defendants being ex parte, it is not necessary to deal with the issues. Mr Anand Banerjee witness of the plaintiffs (and who has been informed to be now no more) has proved the authorization in his favour from each of the plaintiffs for institution of the suit and for signing and verification of the plaint as exhibits P1, P2 and P3. As far as the plea of territorial jurisdiction is concerned, the same has been invoked under the provisions of Section 62(a) of the Copyright Act. The witnesses of the plaintiffs have deposed that the plaintiffs carrying on business for profit CS(OS)365/2000 Page 3 of 7 and gain in New Delhi through their various subsidiaries, distributors and stockists and particulars of whom have been pleaded as well as deposed. As far as the plea of the defendants relating to clubbing of the cause of action, the witness of the plaintiffs has deposed that the right of relief against the defendants has arisen to the plaintiffs out of the same act or transaction of the defendants and if separate suits were instituted against the defendants common questions of law and fact would arise and there would be multiplicity of proceedings. It is further in evidence that the defendants are reproducing the copyright of the plaintiffs by electronic means and storing pirated computer programs of each of the plaintiffs on the common hard disk, CD or floppy disk and by a singular act or transaction and which floppy disk is then loaded on the computer sold by the defendants. The witness of the plaintiffs has further deposed about the right of the plaintiffs in the software/computer programmes and which, in any, case, has not been seriously controverted in the written statement filed by the defendants also. The contention of the defendants was that they were not indulging in the acts complained of by the plaintiffs. The copyright registrations in favour of the plaintiffs have been proved as Exhibit P4 to P9 and the trademark certificates as Exhibit P10 to P17.
CS(OS)365/2000 Page 4 of 7
5. Mr Rajesh Satwah witness of the plaintiff has deposed about visiting the premises of the defendants after acquiring knowledge of the infringing activities of the defendants and of the defendants having loaded pirated/unlicensed software of the plaintiffs.
6. As aforesaid the defendants had also not claimed any rights in the software / copyright/trademark of the plaintiffs and had merely denied the infringing actions. The defendants having failed to cross examine the witnesses of the plaintiffs and / or to lead any evidence of their own, evidence of the plaintiff is to be believed. The case of infringement of copyright and trademark is made out.
7. The plaintiffs besides the said relief have also claimed the relief of rendition of accounts. Mr Sanjeev Sharma witness of the plaintiffs has deposed that from the sales tax number of the defendants it is clear that the defendants have been carrying on business at least since 14th May, 1999. As aforesaid the injunction order was issued against the defendants on 21st February, 2000. The witness of the plaintiffs has further deposed about the average market price of the licensed products of the plaintiffs and which CS(OS)365/2000 Page 5 of 7 were being illegally loaded by the defendants. The witness of the plaintiffs has further deposed that the defendants would have sales of at least a minimum of 5 computers a month and for sales for a period of four months deposed that the damages suffered by the plaintiffs would be in the sum of Rs 14 lacs.
8. This court in Microsoft Corporation Vs Yogesh Papat 2005(30) PTC 245 and in Time Incorporate Vs Lokesh Srivastava 2005 (30) PTC 3 has held that in such cases there is no purpose in ordering accounts against persons dealing in piracy, no accounts are kept of such sales. It has further been held that merely because the defendants chose not to contest the suit the defendants cannot escape the liability for damages. In fact this court has also taken judicial notice of the sales at least in Delhi by such vendors. I do not find any reason to disbelieve the witness of the plaintiffs regarding damages and find the plaintiffs entitled to a decree for Rs 14 lacs.
9. The suit of the plaintiffs is thus decreed for the reliefs of injunction in terms of prayer paragraphs 61 (a), (b) and
(c) of the amended plaint dated 8th October, 2004 as well as for recovery of damages in the sum of Rs 14 lacs. The CS(OS)365/2000 Page 6 of 7 plaintiffs shall also be entitled to costs of the suit from the defendants. Counsels fee assessed at Rs. 50,000/-. The decree sheet be drawn up accordingly.
RAJIV SAHAI ENDLAW (JUDGE) March 23, 2009 M CS(OS)365/2000 Page 7 of 7