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19. He would further submit that the Plaintiffs have failed to plead or prima facie establish any copyright infringement in software or source code as no details about the Plaintiff's software is given nor any comparison with Defendant's software to show infringement and as to which portion of Defendant's source code is said to have been copied.

20. He would further submit that insofar as the corporate name of Defendant No 3 is concerned, i.e. ODC Universal Technological 11 2009 SCC OnLine Del 3827 Sairaj 11 of 25 IA(L)-22386-2024 (f).doc Solutions Private Limited, the Defendant No. 3's corporate name is structurally, visually and conceptually distinct from the mark Universal Test Solutions and the ingredients of Section 29(5) of Trade Marks Act, 1999 are not satisfied.

25. The statement made by Mr. Khandekar, on instructions, are accepted as undertaking given to this Court. The statement about discontinuation by the Defendant Nos 1 to 3 of the trade marks "Test Magic-Innovative Test Solutions" device, "Robo Magi- An Enterprise Automoation Platform" (device), "ezAutomate" considerably narrows down the marks of which infringement is claimed and restricts the scope of inquiry as to infringement of domain name "www.uts- global.com/ utsglobal", infringement of the Plaintiff's trade mark by use of the corporate name of Defendant No 3 i.e. "ODC Universal Technological Solutions Private Limited", UTS and copyright infringement by use of the Plaintiff's software and source code. In view of the narrow confine of the inquiry to trade mark vs trade name, it is not necessary to deal with the decisions cited in context of trade mark vs. trade mark infringement.

37. Coming to the issue of copyright infringement in the software or source code, the Plaintiff has pleaded that that the software developed by Defendant No 1 was very rudimentary and nascent while the final software version developed by the Plaintiff No 1 and its employees was complete, highly efficient and thoroughly intuitive. It is stated that the web- based software marketed under the Plaintiff's registered trade mark as well as the source code are developed entirely by Plaintiff No. 1 in which the copyright subsists in favor of the Plaintiff.

38. Section 2(o) of Copyright Act, 1957 defines literary work to include computer programes, tables and compilations including Sairaj 21 of 25 IA(L)-22386-2024 (f).doc computer databases. Section 13 (1) (a) provides that copyright shall subsist in the original literary work and under Section 14(b) in case of computer programme, copyright means an exclusive right to reproduce the work in any material form, issuing copies and to sell or give on commercial rental or offer for sale or for commercial rental any copy of computer programme. The case of infringement as pleaded is that the copyrighted software and source code is being used by the Defendants illegally without any license or authorization from the Plaintiffs. The case thus is of unauthorised access and commercial exploitation of the copyrighted software and source code by the Defendants through its domain. The pleadings on the aspect of piracy are lacking in material particulars and constitute bare assertions. The pleadings concentrate on the manner of development of the software and source code by the Plaintiffs out of their funds and through their employees to assert its ownership in copyright. Even accepting the Plaintiff's copyright in the software and source code, it is necessary for the pleading of piracy to be substantiated by placing material on record for this Court to come to a prima facie finding of piracy of software. In cases where the claim is of copyright infringement of computer programme, it is necessary for the Plaintiff to seek appointment of an independent expert for the purpose of submitting a report on comparison of the Plaintiff's copyrighted software and source code with Defendant's software and Sairaj 22 of 25 IA(L)-22386-2024 (f).doc source code to demonstrate prima facie case of piracy. It cannot be disputed that the infringement of computer programme involving a software and source code involve highly technical questions and without the assistance of expert report merely on the basis of screen shots of the demo videos uploaded by the Defendants, it is not possible for this Court to come to a prima facie finding of the piracy of software and source code. It also does not help that there is no identified description of the software, which has been developed by the Plaintiffs and juxtapositioning the same with the Defendant's software for the purpose of prima facie comparison even by this Court. There were no submissions canvassed sufficient to arrive at finding of copyright infringement.