Delhi High Court - Orders
Bentley Systems Inc & Anr vs Engineers Diagnostic Centre Private ... on 18 December, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 894/2023, I.As. 25388/2023, 25389/2023 &
25390/2023
BENTLEY SYSTEMS INC & ANR. ..... Plaintiffs
Through: Mr. Pravin Anand, Mr. Shantanu
Sahay, Ms. Imon Roy, Ms. Shreya
Shukla, Ms. Vareesha Irfan, Advs.
(M. 9899228168)
versus
ENGINEERS DIAGNOSTIC CENTRE
PRIVATE LIMITED & ORS. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 18.12.2023
1. This hearing has been done through hybrid mode.
I.A. 25389/2023 (for additional documents)
2. This is an application filed by the Plaintiffs seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter 'Commercial Courts Act'). The 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 and the DHC (Original Side) Rules, 2018.
3. The application is disposed of.
I.A. 25390/2023 (for exemption)
4. This is an application seeking exemption from filing originals/certified/cleared/typed or translated copies of documents, proper margins, electronic documents, etc. Original documents shall be CS(COMM) 894/2023 Page 1 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:56 produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act, 2015 and the DHC (Original Side) Rules, 2018.
5. Exemption is allowed, subject to all just exceptions. Accordingly, the application is disposed of.
CS (COMM) 894/2023
6. Let the plaint be registered as a suit.
7. Issue summons to the Defendants through all modes upon filing of Process Fee.
8. The summons to the Defendants shall indicate that the written statement to the plaint shall be positively filed within 30 days from 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 Plaintiffs, without which the written statement shall not be taken on record.
9. Liberty is given to the Plaintiffs to file the replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiffs, 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 the timelines.
10. List before the Joint Registrar for marking of exhibits on 13th February 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
11. List before Court on 9th May, 2024.
I.A. 25388/2023 (u/O XXXIX Rules 1 & 2 CPC)
12. Issue notice in the application.
CS(COMM) 894/2023 Page 2 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:56
13. The present suit for copyright infringement has been filed by the Plaintiffs seeking injunction against the unauthorized use of its software programs, namely, PLAXIS 2D and PLAXIS 3D and their various versions.
14. The suit is instituted by Plaintiff no.1 - Bentley Systems Inc. and Plaintiff No.2 - Bentley Systems India Private Limited which is a subsidiary company of Plaintiff No.1, seeking protection of its rights in the said software programs. The Plaintiff No. 1 is stated to be global provider of infrastructure software solutions to engineers, architects, geospatial professionals, constructors, and owner-operators for the design, construction and operations of infrastructure. The PLAXIS software programs are stated to have been created in 2022 in the U.S. and owing to Section 40 of the Copyright Act, 1957 (hereinafter, 'the Act'), and the International Copyright Order, 1999 the said software programs are automatically entitled to copyright due to reciprocal protection in terms of Berne Convention, Universal Copyright Conventions and the World Trade Organization Agreement.
15. The case of the Plaintiffs is that the said software programs are one of the most sought-after structural engineering software in respect of Computer Aided Engineering (CAE) software which is used for the purposes of performing analysis of soils, rocks, and associated structures and models the same in full 2 dimensional (Plaxis 2D) or 3 dimensional (Plaxis 3D) structures.
16. The Defendants in the present suit are Defendant No.1 - M/s Engineers Diagnostic Centre Private Limited, Defendant No.2 - Geo Structurals Private Limited and Defendant No.3 - Mr. Anil Joseph. The allegation against the Defendant is that the Defendants are using CS(COMM) 894/2023 Page 3 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:56 unauthorized copies of the Plaintiffs' software programs which was verified by the Plaintiffs through `phone home' technology which is built into the Plaintiffs' software programs and further verifies whether the software is being used in accordance with the terms of the End User License Agreement (hereinafter, 'EULA'). The report in respect of such assessment made by `phone home' technology reveals that there are a total of 36 pirated versions which are being used by the Defendants.
17. Mr. Anand, ld. Counsel submits that Defendant No.1 has no license with regard to any of the Plaintiffs' software programs while Defendant No.2 has two licenses of the Plaintiffs' STAAD.Pro software program including an annual subscription license and one perpetual license. However Defendant No.2 does not have any license for the subject software programs.
18. Sometime in March, 2023, the Plaintiffs learnt of the unauthorized use of the Plaintiff's PLAXIS software programs by the Defendants.
19. Initially, a legal notice was sent on 28th March, 2023. However, despite the Defendants reaching out, no amicable resolution came about.
20. A pre-litigation mediation before the Delhi High Court Mediation and Conciliation Centre was also attempted, but did not reach any fruition as the parties could not arrive at mutually amicable settlement terms.
21. As per the Plaintiffs, the recent enquiry through the `phone home' technology reveals that the infringing activity is continuing and the details of the pirated versions being used are as under:
CS(COMM) 894/2023 Page 4 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:56
22. Further, it is also averred that the Defendants might be using Virtual Private Networks (VPNs) on their computer systems to access internet, which makes it difficult for the "phone-home" tool to capture the actual IP addresses.
23. After having perused the plaint, the Defendants having not made any attempt to resolve the dispute, the Plaintiffs have made out a prima facie case for grant of an ad interim injunction. Balance of convenience is also in favour of the Plaintiffs and Plaintiff would suffer huge damage if the Defendants continue the unlicensed/ unauthorized usage of the Plaintiffs' software programs.
24. Accordingly, the Defendants and any others acting for or on their behalf shall stand restrained from using any unlicensed software programs being PLAXIS 2D and PLAXIS 3D or in any manner copying, reproducing, storing or installing any pirated or unlicensed software programs in their premises.
25. Compliance of Order XXXIX Rule 3 of CPC be made within one week.
CS(COMM) 894/2023 Page 5 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:56
26. Reply to the application be filed within four weeks after service of pleadings and documents.
27. List on 9th May, 2024.
PRATHIBA M. SINGH, J.
DECEMBER 18, 2023 Rahul/bh CS(COMM) 894/2023 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/12/2023 at 22:06:57