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18. The deposition of Mr. Manoj Kumar, who was the investigator appointed by the plaintiff company shows that he had purchased a computer system from defendant No.2 on 8th/9th June 2004, had got it sealed in boxes and later delivered those boxes in the office of M/s. Anand & Anand at B-41, Nizamuddin East, New Delhi. His deposition also shows that he had informed the representatives of defendant No.2 that he would like to have Microsoft Office XP, Microsoft Office, Microsoft Visual Studio, Norton Antivirus, Games amongst other softwares to be loaded in the computer and on checking the machines, he found Microsoft Windows XP Professional, Microsoft Office and Microsoft Visual Basic, etc. installed therein. The deposition of Sh. Bhagwati Prassad, Advocate shows that the sealed boxes which Mr. Manoj Kumar had deposited in their office on 9th June 2004 were inspected by Mr. Gurjot Singh on 10th June 2004. The affidavit of Mr. Gurjot Singh shows that Microsoft Windows XP Professional Version 2002, Microsoft Office 2000 and Microsoft Visual Basic 6.0 were found installed in the computers which Mr. Manoj Kumar had purchased from defendant No.2 and which he had delivered at the office of M/s. Anand & Anand Advocates on 9th June 2004. Mr. Gurjot Singh has, in his affidavit, given grounds on the basis of which he came to the conclusion that the software found loaded in the computer inspected by him were pirated softwares. The deposition of Mr. Gurjot Singh as well Mr. Manoj Kumar also shows that the computer sold by defendant No.2 to Mr. Manoj Kumar was not accompanied by any media such as CDs/floppies, Instructional Manuals, End User Licence Agreements, Certificates of Authenticity and Registration Cards. Had the software loaded with the computer been genuine software purchased from plaintiff company, not only the CD/floppy, but the instructional manual and certificate of authenticity, etc. would have been supplied by defendant No.2 to Mr. Manoj Kumar along with the computer. In particular the affidavit of Mr. Gurjot Singh shows that the product keys of the software loaded in the computer inspected by him were "installation break codes"

since the original product key of plaintiff‟s genuine software does not contain numbers such as "0000" or "1111111111".

According to him break codes are products key codes which can bypass the requirement of providing authentic installation codes during software installation. In view of the inspection report of Mr. Gurjot Singh coupled with the deposition of Mr. Manoj Kumar, I have no hesitation in holding that defendant No.2 had sold computer system having a hard disk loaded with pirated software Microsoft Windows XP Professional Version 2002, Microsoft Office 2000 and Microsoft Visual Basic 6.0. By selling computer system which contained a hard disk loaded with the pirated software in which copyright is held by the plaintiff company, defendant No.2 infringed the copyright of the plaintiff in the aforesaid computer program. The contention of the learned counsel for the plaintiff is that use of the pirated software also involves use of the trademark Microsoft of the plaintiff company without any licence from the plaintiff company and, therefore, defendant no.2 has also infringed the registered trademark of the plaintiff company which is otherwise a well-known mark in India.

19. The learned counsel for the plaintiff states that he is confining his prayer to grant of perpetual injunction and damages. In Autodesk, Inc. vs. Mr. Prakash Deshmukh, Suit No. 1755/2003 decided on 9th March 2011, in which Microsoft Corporation was plaintiff No.2 before this Court, this Court inter alia observed as under:-

It is difficult to dispute that the use of pirated softwares of reputed companies such as Microsoft and AutoCAD is widely prevalent in our country and in fact, use of pirated software may be far exceeding the use of licenced software. The companies which invest heavily in development of such highly useful software, will be discouraged from making further investments in designing new softwares and improving the existing ones, if they are deprived of licence fee which they get on sale of licences, since it is only from that money that they can develop new softwares by making substantial investments in research and development.

20. Defendant No.2 has been found using the pirated software of the plaintiff company for making gains in its business. There is a strong likelihood of defendant No.2 persisting with sale of computer system having hard disk loaded with pirated software unless adequate punitive damages are awarded against it. In fact use of pirated software by a commercial entity such as defendant No.2 needs to be dealt with more strictly then use of software by an individual for his personal purpose. Defendant No. 2 has not come forward to contest the suit. Had it contested the suit, it would have been possible for the Court to scrutinize its account books to ascertain the profit it has been making from sale of computers loaded with pirated software. The defendant No. 2 is a company, carrying business in Nehru Place, a prime locality, which is the main market for sale of such products. It can, therefore, be safely assumed that it must be making handsome profits by selling computers loaded with pirated software and that is why it has taken the risk of carrying business of this nature and has chose not to come forward to contest the suit. The punitive damages to be awarded against defendant No. 2, therefore, need to be adequate, exemplary and deterrent enough.