Delhi District Court
New Delhi110019 .....Complainant vs . on 23 June, 2014
1
IN THE COURT OF Ms VEENA RANI: CHIEF METROPOLITAN
MAGISTRATE, SOUTH EAST DISTRICT, NEW DELHI
MCA No.23/1/2014
HewlettPackard Company
having its office at
300 Hanover Street, Palo Alto,
California, 94304 USA
Through
Mr. Mukesh
M/s C3i Consultants India Private Limited
1/6, Basement, Kalkaji Extn.(Behind Police Station)
New Delhi110019 .....Complainant
Vs.
Unknown Persons .....Respondent
23.06.2014
Present: Ld. Counsel for complainant.
ORDER
1. This is an order on the complaint under section 103 & 104 Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 2 of Trade Marks Act read with Section 63of the Copyright Act 1957 and Section 420/485/486 of the Indian Penal Code 1872 filed by the complainant. Brief facts of the case are that the complainantherein is a limited company incorporated under the Companies Act, 1923 and Mr. Mukesh who has been authorized by M/s C3i Consultants Private Limited to file the present criminal complaint vide its authorization dated 15012014. It is stated that complainant company is the registered proprietor of trade mark HewlettPackard and also registered proprietor of trade mark HP logo in respect of computers, computer hardware, computer software, computer peripheral, computer and communications networking and software, data processing and data storage, printers, facsimile machine, imaging hardware, software, scanner, photocopier and also engaged and marketing of toner cartridges, Inkjet Cartridges, Printing Inks, Toners and printing presses and parts etc.
2. It is stated that in the 1st week of January, 2014, the complainant company came to know that some unknown persons/firms/companies are manufacturing and selling the similar and identical spurious toner cartridges, Inkjet Cartridges, printing inks, toners under the trade mark "HP"(logo) and Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 3 "Hewlett Packard" int he area of Nehru Place, New Delhi without authorization of the complainant company and they have also been using the name and address of the complainant company. It is further stated that the said products/label/packing material/goods,used by the accused party, are not printed manufactured and sold by the complainant company as the said goods are of spurious quality and do not belong to the complainant. It is stated that complainant has never placed any order to the said accused parties to manufacture the said material/goods on their behalf nor have they authorized them any time to do so, hence, the accused persons have infringed and are infringing and are abetting the infringement of the complainant's trade mark and all the illegal activities are being committed by the accused persons solely with a view to trade upon the goodwill and reputation of the complainant and to earn profits in an illegal manner. It is stated that by virtue of their infringing acts of the accused company the following offence under section 103 & 104 of Trade Marks Act, Section 63 of the Copyright Act and also section 420/485/486 of the Indian Penal Code have been committed by the accused persons and its officials.
3. It is stated that complainant company filed a complaint Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 4 before the DCP South East, Sarita Vihar on 15012014 against the unknown accused persons but till date police is not taking any action against such persons, hence, the complainant has filed the present complaint before this court.
4. I have heard the ld. Counsel for the complainant and perused the records.
5. According to section 2(ffc) of the Copyright Act, a computer program is a "set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular results". The essential elements of a computer program are: It is a set of instructions expressed in:
a. words, b. codes, c. schemes or d. in any other form, including a machine readable medium. capable of causing a computer to:
a. perform a particular task or b. achieve a particular results.
Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 5
6. Computer software is "computer program" within the meaning of the Copyright Act. Computer programs are included in the definition of literary work under the Copyright Act.
7. Author's Right: The Copyright Act protects the author's economic and moral rights in the copyrighted work as stated in section 14 and 57 respectively, including the rights in computer software/programmes. In the case of computer software/programmes, the copyrights owner is entitled to reproduce the work, issue copies of the work to the public make any cinematographic films or sound or adaptation of the work, apart from the right 'to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer software/ programmes. Such commercial rental does not apply in respect of computer software/programmes where the computer programme itself is not essential object of the rental. This provision on rental rights is in line with Article 11 of the TRIPS Agreement and was added in the Act in 1999. Even though the TRIPS Agreement does not specifically protects the moral rights, buy the same are protected under the Copyright Act, 19573.
8. Computer Program A Literary Work : Section 2 (o) defines 'literary work' and includes computer programs, tables and Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 6 compilations including computer databases. Section 13 provides the categories of work in which the copyright subsists which includes original literary work. The author of a work is the first owner of copyright in the work. However in case of employer employee if a work is made in course of employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright in the above of any contract to the contrary4. These provisions of the copyright law are applicable mutatis mutandis to computer software/ programmes as well.
9. In Tata Consultancy Services v. State of Andhra Pradesh (reported in Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR 401 (2004)), the Supreme Court considered computer software is intellectual property, whether it is conveyed in diskettes, floppy, magnetic tapes or CD ROMs, whether canned (Shrinkwrapped) or uncanned (customized), whether it comes as part of computer or independently , whether it is branded or unbranded, tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored , processed , etc. and therefore as a 'good' liable to sale tax. The court stated that, 'it would become goods provided it has the attributes thereof having regards to (a) its ability; (b) capable of being bought and sold; and Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 7
(c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or noncustomized satisfies these attributes, the same would be goods.'
10. The copyright in a computer program is deemed to be infringed when any person without a license or in contravention of the conditions of a licence:
1. does anything, the exclusive right of which is conferred upon the owner of the copyright by the Copyright Act, or
2. commercially permits any place to be used for the communication of infringing work to the public.
11. The following are also deemed to be infringement:
1. distributing, selling or hiring out infringing copies,
2. exhibiting infringing copies in public,
3. importing infringing copies into India.
12. A brief description of common methods of copyright infringement employed in relation to computer software is:
a. reproducing the software and its packaging so that purchasers are deliberately misled into believing that the product they are buying is genuine software.
b. reproducing or "burning" the software onto a blank CD, where no attempt is made to represent that the copy is genuine. Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 8 c. reproducing a number of the programs on a single CD ROM knwn as 'compilation' CD.
13. Another form of piracy that is assuming great significance in the information age is that of Internet piracy. Internet piracy occurs when software is downloaded from the Internet or distributed via the Internet without the permission of the copyright owner. Common Internet sites used for this infringing activity include online classified advertisements, Auction Houses, newsgroups, personal web sites and Bulletin Board Service (BBS) sites.
14. In the present case the complainantherein has specifically averred that some unknown persons / firms companies are indulging in the manufacturing and selling the similar and identical spurious toner cartridges, Inkjet Cartridges, printing inks, toners under the trade mark "HP"(logo) and "Hewlett Packard" in the area of Nehru Place, New Delhi without authorization of the complainant company and they have also been using the name and address of the complainant company and this is causing severe losses to the complainantcompany both in terms of money as well as in terms of reputation. At the time of argument I have also been shown two adapters/laptop chargers one Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons 9 of which is counterfeit. I am satisfied that an instigation is required into the allegations. I therefore direct the SHO/EOW to register an FIR and conduct the investigation in the matter with the help of the complainantsherein. Original complaint be handed over to the SHO/EOW after retaining a copy of the same on record as per rules.
The application u/s 93 Cr.PC is also allowed and Search and Seizure warrants be issued on filing of PF by the complainant. File be consigned to record room.
Announced in the open court.
(VEENA RANI) CMM/SE/SAKET COURTS,NEW DELHI Date :23062014 Cr. No. 23/14, HewlettPackard Company Vs. Unknown Persons