Delhi High Court - Orders
Sap Se vs Sap Hana Server Access Hyderabad And Ors on 25 May, 2021
Author: C.Hari Shankar
Bench: C. Hari Shankar
11 (original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 239/2021, I.A.6687/2021, I.A.6688/2021,
I.A.6689/2021, I.A.6690/2021, I.A.6691/2021
SAP SE ..... Plaintiff
Through: Mr. Ranjan Narula, Mr. Shashi P.
Ojha and Ms. Payal Kalhan, Advs.
versus
SAP HANA SERVER ACCESS HYDERABAD AND ORS
..... Defendants
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 25.05.2021
(Video-Conferencing)
I.A.6691/2021 (exemption)
1. Subject to the plaintiff filing notarized affidavits within two weeks of lifting of lockdown, exemption is granted for the present.
2. The application is disposed of.
I.A.6690/2021 (exemption from filing court fees)
1. Mr. Narula submits that he would deposit the court fees within a Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 1 of 17 Signing Date:27.05.2021 21:24:54 period of two weeks from today. Subject thereto, exemption is granted for the present.
2. The application is disposed of accordingly.
I.A.6689/2021 (exemption)
1. Subject to the plaintiff filing legible copies of any dim or illegible documents on which it may seek to place reliance within four weeks from today, the prayer in the application is allowed.
2. The application stands disposed of.
I.A.6688 /2021 (under Order XI Rule 1(4) of the CPC)
1. Subject to the right of the defendants to admit/deny the same, the plaintiff is permitted to file additional documents within four weeks from today.
2. The application stands disposed of.
CS(COMM) 239/2021
1. Issue summons. Written statement, accompanied by affidavits of admission/denial of the documents filed by the plaintiff, be filed within four weeks with advance copy to learned Counsel for the plaintiff who Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 2 of 17 Signing Date:27.05.2021 21:24:54 may file replication thereto, if any, accompanied by affidavits of admission/denial of the documents filed by the defendants within two weeks thereof.
2. List before the Joint Registrar for completion of pleadings, admission/denial of documents and marking of exhibits on 4th August, 2021.
I.A.6687/2021 (under Order XXXIX Rules 1 and 2 of the CPC)
1. Issue notice, returnable on 20th August, 2021 before the Court. Reply to this application be filed within four weeks with advance copy to learned Counsel for the applicant/plaintiff who may file rejoinder thereto, if any, before the next date of hearing.
2. Mr. Ranjan Narula, learned Counsel for the plaintiff prays for ad- interim relief. In the facts of the case, I feel that the prayer is well merited.
3. The plaintiff provides software application solutions, including the SAP Business Suite, which is claimed to optimize all business critical- processes and works on the Net Weaver platform of the plaintiff. Detailed averments are contained, in the plaint, establishing that the mark "SAP" is indelibly associated with the software of the plaintiff. The most recent manifestation of the software of the plaintiff is stated to be "SAP Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 3 of 17 Signing Date:27.05.2021 21:24:54 HANA". The plaint further avers that the plaintiff's product is not available off the shelf or through e-stores or other commercial retail channels, and that any person seeking to use or exploit the plaintiff's software would have to take a specific license from the plaintiff for that purpose. The license, according to the plaint, does not permit the use of the license for any purpose other than for operating the plaintiff's software and does not permit sub-licensing of the software either. The plaintiff claims, in the circumstances, to be the exclusive copyright holder of the "SAP" mark which is an "original literary work" within the meaning of Section 2(o) and Section 13(1)(a) of the Copyright Act, 1957. By virtue of Section 40 of the Copyright Act, the plaintiff claims protection in respect of the said copyright, being the first owner thereof.
4. Trademark rights are also asserted in the plaint. It is claimed that the plaintiff coined, adopted and commenced the use of the "SAP" trademark in 1972. The plaintiff claims to be the registered proprietor of the trademark SAP, and SAP HANA in various classes. Copies of the registrations have also been annexed with the plaint. It is asserted that the plaintiff has continuously and extensively been using the SAP/ , as well as its formative marks for its products and services in over 75 countries. In view thereof, the plaint asserts that the SAP/ marks have become highly distinctive of the plaintiff's goods and services and are exclusively associated therewith. The plaint also claims that the plaintiff has earned enviable goodwill and reputation worldwide Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 4 of 17 Signing Date:27.05.2021 21:24:54 for its products and services under the trademark SAP/ .
5. In para 17 of the plaint, it is claimed that the brand/trade name "SAP" ranked 27th in the list of "Best 50 Innovative companies in 2020"
by the Boston Consulting Group, as reflected in the www.rankingthebrands.com website, 17th in the list of BrandZ Top 100 Most Valuable Global Brands issued by the agency Millward Brown on the http://www.millwardbrown.com/, 4th in the list of Best German brands in 2015 by Interbrand and 18th in the list of Best Global brands, as per the assessment of Interbrand in 2020. As such, it is claimed that the "SAP" brand/trade name is an extremely valuable asset of the plaintiff.
6. The plaintiff has also provided the total revenue earned by use of the SAP brands, which, in 2020, is claimed to be in the region of € 6.35 billion. It is also claimed that enormous advertising and promotional expenses are incurred by the plaintiff in promoting its brands.
7. In view thereof, the plaint asserts that the SAP/ brands are "well known marks" within the meaning of Section 2(1)(zg) read with Section 11(6) of the Trade Marks Act, 1999.
8. The plaint complains that, sometime in April, 2021, the plaintiff came to know that Defendant No.1 was offering unauthorised on-line training of the SAP software of the plaintiff, using pirated copyright Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 5 of 17 Signing Date:27.05.2021 21:24:54 protected training materials and software of the plaintiff, through servers which were remotely accessible and worked under dynamic IPs so that it was not possible to trace their location. It is, however, alleged that Defendant No. 1, which is based in Hyderabad is controlling and running all websites of the defendants. It is further asserted that the e-mail ID [email protected] with the phone no. 8499874455 is reflected on all four websites of Defendant No.1 namely www.saphanaserveraccesshyderabad.com, www.sapremoteaccesshyderabad.com, www.sapplugandplayharddrives.com and www.trainingvideos99.com, indicating that the four websites were connected with each other and worked under common ownership and control. In order to avoid detection and consequent liability, it is alleged that Defendant No. 1 does not store the pirated materials on its consumer system but provides them using dynamic IPs.
9. On conducting further searches, it is alleged that Mr. K. Sampath Reddy was found to be controlling the aforesaid websites. The manner in which these websites are interconnected, and provide access to pirated software of the plaintiff is set out in detail in paras 24 and 25 of the plaint. The following representations, contained on the websites of Defendant No.1, are also relied upon, in para 27 of the plaint:
"a) www.saphanaserveraccesshyderabad.com We are one of the Best 24/7 SAP Server Access Providers for Practice to enrich your SAP Skills to get on the Competitive IT Industry. We are offering sap server access for all modules, You Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 6 of 17 Signing Date:27.05.2021 21:24:54 will get 1 day Free Sap Server Access for practice for Functional(Fico/SD/MM/PP/HR) or ABAP Modules
b) www.sapremoteaccesshyderabad.com We also offer SAP dedicated server for corporate training or individual trainings. All Servers can be arranged almost within 24 hours* according to clients requirement. Sap dedicated server is reliable for training purpose.
c) www.sapplugandplayharddrives.com We are also offering Sap Server access for all sap modules. Sap server access available for sap s4 hana 1909, sap fico, mm, sd, hr, abap, abap on hana, hana admin, hybris, basis, apo, ewm, simple finance and simple logistics etc. Saps4 hana Plug and Play Hard Drives to practice all S4 hana Modules at your own Lab.
d) www.trainingvideos99.com We are providing best Latest SAP Training Videos for all modules of Sap Videos and these sap video tutorials i.e., sap learning videos can be downloaded for the Following Functional, Technical SAP videos Modules. We can share the Download links after transferring the amount to my Bank Account. Pls drop a test mail to get Payment details and Sample Demo Videos Classes to [email protected] before you buy."
10. Thus, it is alleged that Defendant No.1 is indulging in rampant piracy and in unauthorised use as part of its domain name "SAP" with or without "HANA". No license, for use of the plaintiff software has been taken from the plaintiff. Even so, it is alleged that Defendant No.1 continues, brazenly, to offer remote server access to SAP pirated software, SAP installation, SAP training videos and SAP online training.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 7 of 17 Signing Date:27.05.2021 21:24:54These activities are being carried out on a pan India basis, including at Delhi.
11. Paras 32 and 33 of the plaint set out how the plaintiff itself, in order to verify the correctness of these facts, attempted access to the server access of Defendant No.1 and succeeded. Relevant details, for logging on to the server of Defendant No.1 were provided, with fees quoted for SAP basis demo and other facilities. It is alleged that the said payment was made by the plaintiff which resulted in the defendant providing server login credentials on the basis of which training of the SAP software would be imparted. Pirated videos of the plaintiff's software were also being provided by Defendant No. 1 against payment.
12. Para 38 of the plaint expresses the apprehension that Defendant No.1 possesses the technical knowhow to create mirror/redirect/alphanumeric websites to distribute the pirated software and other material and circumvent court orders.
13. As there are, according to the plaint, unknown agents and brokers who are providing pirated software to Defendant No.1 and other parties based at Hyderabad and Delhi, these unknown defendants have been collectively impleaded under the mnemonic "Ashok Kumar" (Defendant No. 2). Defendant Nos. 3 and 4 are stated to be the domain name registrars and web-hosts of the websites and domain names being used by Defendant Nos. 3 to 5. Defendant Nos. 6 to 8 are the social media Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 8 of 17 Signing Date:27.05.2021 21:24:54 websites being operated by Defendant No.1.
14. The aforesaid allegations, as contained in the plaint, taken on demurrer, make out, prima facie, a case of rampant piracy, by Defendant No.1, of the licensed software of the plaintiff. The plaintiff has also annexed, with the plaint, orders passed by various Benches of this Court, in other suits initiated by the plaintiff to protect its licensed software, in which ex parte ad interim orders have been passed.
15. The I.A., in the circumstances prays for ad interim orders in the following terms:
"28. It is most respectfully prayed that this Hon'ble Court may be pleased to grant the following reliefs in favour of the Plaintiff and against the Defendants:
(a) An ex-parte order restraining the Defendant No.1, its directors/partners/ proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on its behalf, or anyone claiming through, by or under it, from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, in any manner/ through online platforms including web sites of Defendant No. 1 at www.saphanaserveraccesshyderabad.com.
www.sapremoteaccesshyderabad.com www.sapplugandplayharddrives.com and www.trainingvideos99.com and third parties websites including but not limited to Facebook, Linkedln, YouTube, or any other cloud based platforms from unauthorisedly distributing, reproducing licensed/unlicensed SAP software, SAP courses and/or Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 9 of 17 Signing Date:27.05.2021 21:24:54 installing unlicensed SAP software, certification, SAP Plug and Play Hard Drive, and training material or videos of various SAP modules inclusive but not limited to instruction handbook, teaching materials, manuals, SAP online or classroom training videos, and/or offering remote server access to Plaintiff s software programs for various SAP courses including but not limited to SAP SAP HANA, SAP HANA ABAP, SAP HANA Administration, SAP HR Module, SAP ABAP, SAP BODS, SAP SD, SAP PP, SAP MM, SAP FICO, SAP BW and SAP BASIS etc., amounting to infringement of the Plaintiff s copyright in its SAP computer programs, software, certification and training material;
(b) An ex-parte order restraining the Defendant No.1, its directors/partners/ proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on its behalf, or anyone claiming through, by or under it, from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, in any manner/ through online platforms including websites of Defendant No. 1 at www.saphanaserveraccesshyderabad.com www.sapremoteaccesshyderabad.com.
www.sapplugandplayharddrives.com and www.trainingvideos99.com and third parties websites including but not limited to Facebook, Linkedln, YouTube, cloud based platforms, third party websites or as part of various courses offered by the Defendant No. 1 including but not limited to SAP SAP HANA, SAP HANA ABAP, SAP HANA Administration, SAP HR Module, SAP ABAP, SAP BODS, SAP SD, SAP PP, SAP MM, SAP FICO, SAP BW and SAP BASIS etc. videos, press manuals, practice test, training videos, and/or offering remote server access, SAP installation, SAP Plug and Play Hard drive in relation to their business either by itself or in conjunction with any other word or mark, or any deceptive variant of the well-known trademark SAP or any other mark of the Plaintiff, . as trade mark or Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 10 of 17 Signing Date:27.05.2021 21:24:54 trading style or domain names www.saphanaserveraccesshvderabad.com www.sapplugandplavharddrives.com and www.sapremoteaccesshyderabad.com or key words or meta-names for which Plaintiff is the registered proprietor amounting to infringement of the Plaintiff's registered and well-known trademarks SAP and SAP HANA registered in various classes including registration nos. 989935, 576754, 576755 in Class 9, registration no. 578462 in Class 16, registration nos. 1238968, 1238969 in Classes 41 and 42, and registration no. 2128825 in Classes 9,16,35,38,41,42;
(c) An ex-parte order restraining the Defendant No.1, its directors/partners/proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on its behalf, or anyone claiming through, by or under it, from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, in any manner/ through online platforms including websites of Defendant No. 1 at www.saphanaserveraccesshyderabad.com www.sapremoteaccesshyderabad.com, www.sapplugandplayharddrives.com and www.trainingvideos99.com and third parties web sites including but not limited to Facebook, YouTube, or any other cloud based platforms from unauthorisedly distributing, reproducing licensed/unlicensed SAP software and/or installing unlicensed SAP software, certification and training material/video, SAP Plug and Play Hard Drive of various SAP modules inclusive of but not limited to instruction handbook, teaching materials, manuals, SAP online or classroom training videos and/or offering remote server access for various SAP courses including but not limited to SAP HANA, SAP HANA ABAP, SAP HANA Administration, SAP HR Module, SAP ABAP, SAP BODS, SAP SD, SAP PP, SAP MM, SAP FICO, SAP BW and SAP BASIS etc., videos, press manuals, practice test, training videos, in relation to their Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 11 of 17 Signing Date:27.05.2021 21:24:54 business either by itself or in conjunction with any other word or mark, or any deceptive variant of the well-known trademark SAP and SAP HANA or any other mark of the Plaintiff, as trade mark or trading style or domain name or key words or meta-names, amounting to passing off of the business/services/products of the Defendant No.1 as and for those of the Plaintiff or having any connection/association with the Plaintiff;
(d) An ex-parte John Doe order against Defendant No.2 and such other unknown and unidentified parties that are working in collusion with Defendant No. 1 in uploading, distributing pirated SAP software, certification, Sap Plug and Hard drives and training materials and offering them for access through their own websites, uploading them on private servers with dynamic IP or social media platforms and other cloud computing platforms thereby copying, reproducing, distributing pirated SAP software, certification and training materials and infringing the intellectual property rights vested with the Plaintiff;
(e) An ex-parte order directing the Defendant No.1 to remove all listings of the impugned activities from their websites, B2B web sites or any other online directories, B2B, B2C website or portals that may be used by the Defendant No.1 to promote its impugned activities bearing the mark SAP in standalone and any other mark identical or deceptively similar to the Plaintiff s marks;
(f) An ex-parte order directing the Defendant Nos. 3, 4 and 5 to deactivate/ disable the access to the web sites and domain names www.saphanaserveraccesshyderabad.com www.sapplugandplayharddrives.com.
www.sapremoteaccesshyderabad.com and
www.trainingvideos99.com and such other
domains/domain owners/website operators/entities which are discovered during the course of the proceedings to have been engaged in infringing the Plaintiffs copyright and any other websites of the unauthorized entities, and Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 12 of 17 Signing Date:27.05.2021 21:24:54 further disable the technologies and services needed for the websites www.saphanaserveraccesshyderabad.com. www.sapremoteaccesshyderabad.com.
www.sapplugandplayharddrives.com and
www.trainingvideos99.com.
(g) An ex-parte order directing the Defendant No.6, 7
and 8 to deactivate the social media accounts of Defendant No.1 through which it is advertising and promoting its infringing activities of providing training using SAP name/mark, pirated SAP software, and certification and training materials. The accounts details/profile links are as under: -
www.saphanaserveraccesshyderabad.com Facebook SAP Server https://www.facebook.com/erpdemo99/ Access https://www.facebook.com/groups/SAPMM9/permalink/37 "SAP MM" 59163727446901/ Linkedin SAP https://www.linkedin.com/in/sapserveraccesss4hanal/?origi SERVER nalSubdomain=in ACCESS www.sapremoteaccesshvderabad.com Facebook https://www.facebook.com/groups/96438354626/permalink /10158631317189627/ "SAP FI/CO Consultant www.trainingvideos99. com YouTube "ERP https://www.youtube.com/watch?v=dRxyQx0Lbgc training videos"
h) Issue an order directing Defendant No.6 to disable the access and distribution of Plaintiff s pirated software through google drive links created by Defendant no 1 and promoting its infringing activities of providing training using SAP name/mark, pirated SAP software, and certification and training materials.
The google drive links are as under: -
Google drive Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 13 of 17 Signing Date:27.05.2021 21:24:54 link provided by https://drive.google.com/drive/u/0/folders/lVgJ Ta2mHH Defendant NEHuTOgwBLdwzpJOZfCjeA No.1 https://drive.google.com/drive/folders/luTbmzzKhhnS97g pBp3i Gt5ixOgD9ziNx
i) Issue an order directing Defendant No. 6 to make the following offending/ impugned websites, content non-searchable by globally de-indexing and de-referencing the following contents from its search results as identified by its Web URL and Image URL, including de-indexing and de-referencing all concerned web-pages, sub-pages or sub-directories on which the following offending content is found, forthwith and in any event within 36 hours of receipt of a copy of order and to further to endeavour to use automated tools to proactively identify and globally disable access to any content which is exactly identical to the following offending content, that may appear on any other websites/online platforms in compliance with the Information Technology Rules and Guidelines;
Offending content to be removed [email protected] [email protected] [email protected] www.saphanaserveraccesshyderabad.com www.sapremoteaccesshyderabad.com www.sapplugandplayharddrives.com www.trainingvideos99.com SAP MM LinkedIn
j) An ex-parte order directing the Defendant No.9 to freeze the account of Defendant No. 1 "HDFC Bank Account no. 50100196347111, with name Srilatha Kankanala, IFSC Code. HDFC0002398 having its branch located Sanath Nagar, Hyderabad-500018" so as to restrain it from using Defendant No.9 as a platform for aiding collection of money and facilitating transaction for selling pirated SAP software, SAP training videos Signature Not Verified and training materials and to reveal the account details of Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 14 of 17 Signing Date:27.05.2021 21:24:54 Defendant No 1 where money being credited along with the number and amount of transactions entered by Defendant No.1 till the disposal of suit;
k) It is most respectfully prayed that plaintiff craves leave before this Hon'ble to serve the Defendants Nos. 1 to 9 through email and other electronic modes;
l) It is further respectfully prayed that in view of the facts and circumstances of the present case and in the interest of justice and public interest, an ex parte order in the aforementioned terms may kindly be granted;
m) Any other and further relief(s) as this Hon'ble Court may deem fit and proper to meet the ends of justice."
16. In view thereof, the following ad interim directions are issued:
(i) There shall be ex parte ad interim injunction in terms of (a), (b), (c) and (e) in the application.
(ii) Defendant Nos. 3, 4 and 5 are directed to immediately de-activate/disable access to the websites and domain names www.saphanaserveraccesshyderabad.com www.saplugandplayharddrives.com, www.sapremoteaccesshyderabad.com and www.trainingvideos99.com, and such other domain/domain orders/websites operators/entities discovered during the proceedings to have engaged in infringing the plaintiff's trademark and copyrights or using its pirated software.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 15 of 17 Signing Date:27.05.2021 21:24:54
(iii) Defendant Nos. 6, 7 and 8 are directed to de-activate the social media accounts of Defendant No.1 through which it is advertising and promoting or providing training using the SAP names/mark or the certification and training materials. The details of the accounts and profile links are provided in prayer (g) in the application.
(iv) Defendant No. 6 is directed further to disable access and distribution of the plaintiff's pirated software through google drive links created by Defendant No.1, whereby Defendant No.1 provides its allegedly infringing activities or providing training using the SAP names/marks and pirated software. The said google drive links are https://drive.google.com/drive/u/0/folders/1VgJ_Ta2mHHN EHuTOgwBLdwzpJOZfCjeA and https://drive.google.com/drive/folders/1uTbmzzKhhnS97gp Bp3iGt5ixOqD9ziNx.
(v) Defendant No.9, the HDFC Bank is directed to immediately freeze the HDFC Bank Account No. 50100196347111, under the name Srilatha Kankanala, IFSC Code HDFC0002398, at the HDFC Branch at Sanath Nagar, Hyderabad-500018, as moneys are stated to be deposited by Defendant No.1, through the pirated and impugned transactions and credited in the said account.Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 16 of 17 Signing Date:27.05.2021 21:24:54
17. These directions shall continue to remain in force till the next date of hearing and shall be subject to vacation or modification, at the instance of the defendants or otherwise.
18. As the above order has been passed ex parte, the plaintiff is directed to comply with the provisions of Order XXXIX Rule 3 of the CPC within two weeks from today.
19. Order to be e-mailed to learned Counsel for the plaintiff as soon as it is corrected and made available.
C.HARI SHANKAR, J MAY 25, 2021/kr Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 239/2021 Page 17 of 17 Signing Date:27.05.2021 21:24:54