Delhi District Court
Refread Solutions Private Limited vs Scientific EResource on 13 October, 2020
IN THE COURT OF SH. PRASHANT KUMAR
ADDITIONAL DISTRICT JUDGE 01, CENTRAL
TIS HAZARI COURTS, DELHI
TM No. 20/2018
Refread Solutions Pvt. Ltd.,
S4/U Tower,
Sector - 17, Gurgaon,
Haryana - India.
Also at
Refread Solutions Private Limited
Regd. Off:
805/20, Azad Nagar,
Roorkee, Haridwar 247667.
...............Plaintiff
Vs.
Scientific EResource
4850/24, Ansari Road, Daryaganj,
New Delhi - 110 002.
Defendant No. 1
Mr. Rajan Jain
4850/24, Ansari Road, Daryaganj,
New Delhi - 110 002.
Defendant No. 2
Mr. Vikas Madan
4850/24, Ansari Road, Daryaganj,
New Delhi - 110 002.
Defendant No. 3
TM No. 20/2018
Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 1 of 12
Date of institution of the suit : 22.01.2018
Date on which order was reserved : 13.10.2020
Date of decision : 13.10.2020
SUIT FOR INFRINGMENT OF COPYRIGHT, UNFAIR
COMPETITION, DAMAGES AND ANCILLARY RELIEFS
EX PARTE JUDGMENT
1.Facts of the present suit in brief are that the plaintiff is a private limited company incorporated under the Indian Companies Act, 1956 and engaged into the business of providing digital/online libraries to help colleges, universities and public libraries. Plaintiff had launched its web based software product of the digital/online libraries by compiling the data of the books collected from the schools and universities in a software in the name of "Refread" to reach more users online and serve them millions of digital resources. Plaintiff became the platform of choice for campuses in India and aboard because of its vast collection of eResources and rich user experience. The platform built by plaintiff was sold in 7 organizations and is running on trial basis in more than 15 colleges and universities in India and abroad.
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2. Defendant No. 1 Mr. Rajan Jain and defendant No. 3 Mr. Vikas Madan, on behalf of defendant No. 1, approached the plaintiff in the month of January, 2017 with the interest to sale and/or license the product and associated services in relation to the product in Indian and Foreign markets and represent the plaintiff as its agent before the end client/customers. The plaintiff and defendant No. 1 entered into an Agency Representation Agreement dated 3rd February, 2017. The said agreement was for the defendants to represent the plaintiff with respect to the product and its online subscriptions only. It was agreed that defendant in a professional, prudent and business manner represent the plaintiff in the activities such as planning, marketing, market research, sales, sales channel coordination, supervision, etc. and report the plaintiff. The agreement laid down the commission, territory, limitations, duties and obligations of both the parties.
3. In the month of October, 2017 while surfing/functioning on the social media, plaintiff was informed by a third party namely Ed Tech Lobby, found a photograph of the defendants promoting a product named "Read Smart Digital" in the largest event of the industry at Frankfurt International Book Fair. The said product which defendants were promoting carried the tagline as that of TM No. 20/2018 Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 3 of 12 the plaintiff i.e. "Your Elegant, Effective Digital Library". Upon investigation plaintiff found that defendants had indulged in the illegal act of duplication and copying the contents of the Website of the plaintiff by 87%, brochure of the plaintiff company substantially and product of the plaintiff by 100%. Thereby, forfeiting the agreement so entered with the plaintiff and infringed the copyright of the plaintiff. The plaintiff feeling aggrieved from the said act served a legal notice dated 29.12.2017 to defendants company and its directors however no response was received from them. Hence, the present suit.
4. Perusal of the record shows that defendants were duly served on 01.02.2018 and was also represented through a counsel on 03.02.2018. Defendants were given ample opportunities to file written statement but in vain and vide order dated 03.05.2018 their right to file written statement was closed. Hence, no written statement was filed on behalf of the defendant.
5. In order to prove its case, plaintiff got examined Sh. Mohit Sharma, as PW1. PW1 tendered in evidence his duly sworn in affidavit Ex.PW1/A, reiterating the contents of the plaint, the same is not reproduced herein for the sake of brevity. In his testimony, PW1 relied upon board resolution Ex.PW1/1, office TM No. 20/2018 Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 4 of 12 copy of agency agreement dated 03.02.2017 exhibited as Ex.PW1/2, training and support email exhibited as Ex.PW1/3, photographs of defendant's promotion exhibited as Ex.PW1/4, comparative chart of competing products exhibited as Ex.PW1/5, office copy of legal notice dated 29.12.2017 exhibited as Ex.PW1/6, printout of defendant's website filed alongwith contempt application exhibited as Ex.PW1/7, printouts of comparative websites displaying the competing products as Ex.PW1/8 (colly.) and printouts of comparative websites displaying the competing products exhibited as Ex.PW1/9 (colly.). Despite opportunity being given to defendants to cross examine PW1, defendants did not cross examine the said witness consequently, PE was closed vide order dated 14.01.2019. Again, vide order dated 30.05.2019 defendant was granted an opportunity to cross examine PW1 subject to cost, however, none appeared for defendant. Lastly, vide order dated 07.01.2020 defendant was proceeded exparte.
6. Final arguments were duly adduced by Ld. counsel for plaintiff and written submissions were also filed. I have duly considered the arguments advanced by Ld. counsel for plaintiff and have perused the evidence as well as written submissions filed on record carefully. My findings are as under:
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7. At the outset, it is noteworthy to mention that during the course of trial, defendants were proceeded exparte. No evidence has been adduced by the defendants to subvert the averments made by the plaintiff in the present case. Thus, the primary onus is upon the plaintiff to prove its case as it is a settled proposition of law that the case of the plaintiff has to stand on its own legs irrespective of the defence of the defendants.
8. In order to prove his case, plaintiff has placed on record various documents. In order to show his bonafide to depose on behalf of the plaintiff company PW1 in his examinationinchief has placed on record copy of board resolution which is Ex.PW1/1. Thereafter, PW1 has relied upon the Agency Representation Agreement dated 03.02.2017 exhibited as Ex.PW1/2 vide which both the parties entered into an agreement under various terms and conditions. PW1 has also placed reliance upon document Ex.PW1/3 which is the training and support emails, in order to ascertain the fact that plaintiff provided training to the sales, marketing and senior management team and other team members of the defendant in order to help them promote and sell the product.
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9. PW1 has also placed on record the photograph exhibited as Ex.PW1/4 wherein defendants were promoting a product name "ReadSmartDigital" with the tag line of the plaintiff company "Your Elegant, Effective Digital Library". PW1 also placed a comparative chart of the competing products duly exhibited as Ex.PW1/5. PW1 had also placed on record document Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9 which are printout of defendant's website displaying the competing products and comparative websites displaying the competing products respectively. Perusal of these documents shows that defendants have breached the agreement and infringed the copyright of the plaintiff.
10.Pursuant to said acts of the defendant, plaintiff served a legal notice dated 29.12.2017 upon the defendants. However, despite receipt of the same, neither did the defendant reply to the said notice nor removed the infringing contents from the alleged websites. It is a settled proposition of law that, if a party despite service of legal notice chooses not to reply to the same, the averments of the notice stands admitted. Thus, by placing the above said documents on record, plaintiff has duly proved the burden placed upon him beyond reasonable doubt.
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11.Thus, on the basis of the conjoint and cumulative appraisal of evidence made as above, it can be stated that, the testimony of PW1 has remained unrebutted, unblemished and uncontroverted as the defendants did not appear to contest the present suit. Moreover, the testimony of plaintiff's witnesses is on oath which has gone unchallenged and unblemished by the defendants. Therefore, the possibility of doubting the testimony of PW1 stands negated. Also, by placing on record various documents, plaintiff has been able to prove its case on the scale of preponderance of probabilities. Also, the suit filed by the plaintiff is very much within the period of limitation.
12.Perusal of the record further reflects that with regard to relief of rendition of account the foremost requirement is the documentary evidence i.e., details of the sales by the defendant, and the profit earned by the defendant in this regard has not been filed. Thus, due to lack of documentary evidence to the contrary no observation with regard to rendition of account can otherwise be made.
13.Similar would be the observation with regard to damages sought by plaintiff against the defendant. Similar yardstick i.e. filing of statement of account, profit earned by defendant, cable TM No. 20/2018 Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 8 of 12 connections with defendant etc. has to be filed on record. In this regard, references can be laid on the judgment passed by Hon'ble High Court titled as "Times Incorporated Vs. Lokesh Srivasta & Anr.", 2005 (30) PTC 3 whereby punitive damages was awarded to the tune of Rs.5 Lakhs in addition to compensatory damages and had also observed that Court dealing with infringement suits in respect of trademark, copyright and patent should also award punitive damages in addition to compensatory damages. Reliance can also be placed on "Microsoft Corporation Vs. Rajendera Pawar & Anr.", 2008 (36) PTC 697. The defendant has thus, therefore caused the plaintiff company substantial loss and damage on account of continuous infringement of the copyright, as per documents placed on record by the plaintiff.
14.Keeping in mind the totality of facts and circumstances, I am of the opinion that, though the damages as claimed by the plaintiff cannot be granted in absence of any evidence to the contrary, however, as per the directions punitive damages should be granted in favour of plaintiff, therefore, in my considered opinion an amount of Rs.5,00,000/ would be appropriate, hence, is granted to the plaintiff in the form of punitive damages.
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15.Accordingly, I am of the considered opinion that on the basis of oral averments and documentary evidence of PW1 duly supported by requisite documents, plaintiff has been able to discharge the burden of proving its case against the defendants. Therefore, suit of the plaintiff stands decreed. From the perusal of the record all the averments made in the plaint as well as prayer clause, it is reflected that vide prayer clause (C) plaintiff has sought restriction upon defendant from doing some business or developing or distributing the product in Indian market for three years, which is similar to the product of the plaintiff. At the outset, it is mentioned that as per Section 27 Indian Contract Act reasonable restrictions for a reasonable period of time can be imposed upon the defendant. In my considered opinion such restrictions, however, should be according to the territorial jurisdiction of the court. So far as imposition of restriction of 3 years is concerned such restriction seems to be reasonable. However, the extent of such restriction needs to be confined to the Indian markets only. Hence, so far as imposition of restriction for a period of three years upon the defendant is concerned, it would be appropriate that it should be extended only to the Indian market. Thus, in my considered opinion the second part of the prayer clause seeking imposing restriction for TM No. 20/2018 Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 10 of 12 a period of three years regarding foreign market is declined.
16.Defendants, their servants, agents, representatives, partners, distributors and assigns are restrained from representing, promoting or selling or in any other manner whatsoever using the impugned brochure, images, any other literary work and products confusingly similar to plaintiff's impugned brochure, images, any other literary work and product therein, in any other manner whatsoever, infringing plaintiff's copyright and reproducing, printing, publishing or distributing or in any other manner whatsoever using the impugned brochure, images, any other literary work and products confusingly similar to the plaintiff's impugned brochure, images, any other literary work and product therein, in any other manner infringing plaintiff's copyright and disposing of or dealing with assets, including the properties mentioned in the cause title of the plaint in a manner which may adversely affect the plaintiff's ability to recover damages, costs or other pecuniary remedies.
17.The defendants their servants, agents, dealers, distributors, representatives and all other person on their behalf are refrained from doing the same business or developing or distributing the product in Indian market for period of 3 years which is TM No. 20/2018 Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 11 of 12 confusingly similar to plaintiff's business and products.
18.Apart from the above, plaintiff is also entitled for a decree of punitive damages to the tune of Rs.5,00,000/ along with interest @ 12% per annum during the pendency of the suit till its realization alongwith costs of the suit. Both the parties are jointly and severally liable to pay the decreetal amount.
Decree sheet be prepared accordingly.
File be consigned to record room, after necessary legal formalities.
Announced in the open court (PRASHANTKUMAR)
on 13th October, 2020 ADJ01/ Central District
Tis Hazari Court/Delhi
TM No. 20/2018
Refread Solutions Pvt, Ltd. vs. Scientific EResources Page No. 12 of 12