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2. This is also the case of the plaintiff that the software programme developed and marketed by them are „computer programmes‟ within the meaning of Section 2 (ffc) of the Indian Copyright Act, 1957 and are also included in the definition of a „literary work‟ as per Section 2(o) of the Copyright Act. It is also alleged that both India and Germany are signatories of the Berne Convention, Universal Copyright Convention and WTO Agreement and, therefore, rights of the plaintiff companies are protected in India under Copyright Act. Defendant Sadiq Pasha is stated to be the proprietor of M/s. Neologik India and is stated to be engaged in the business of providing ERP/eCRM training services to its clients and also providing training programme in ERP software at Bangalore. It was found by the plaintiffs that on its website www.neologikindia.com the defendant was making offer for providing various training programmes in relation to plaintiffs‟ software products and had also been regularly advertising the training programmes offered by it with respect to the software programmes of the plaintiffs, especially on SAP R/3 and ABAP/4. It is also alleged that only a formal training agreement with the plaintiffs renders training license in respect of SAP software products and training packages are prohibited from being implemented as commercial industry solutions. It is claimed that there is not a single valid license granted by the plaintiffs to the defendant and, therefore, he has illegally obtained/installed and is using pirated/infringing software products belonging to the plaintiffs. It is further claimed that during the search operation on 19th October 2004 the police was able to recover two servers containing pirated software SAP R/3 Version 4.7 IDES which were being used for providing training on SAP software. Thereafter an e-mail was sent by the defendant to the plaintiff wherein he not only acknowledged use of plaintiffs‟ unlicensed software programmes but also admitted that despite raid by police he continue to conduct unauthorized training programme in SAP software. The plaintiffs have accordingly sought an injunction restraining the defendant from reproducing/installing and/or using pirated/unlicensed software programmes of plaintiff No.1, including SAP R/3 and ABAP/4 for the purpose of training or otherwise. They have also sought delivery up of the infringing material besides seeking rendition of accounts.

In Larsen and Toubro Limited v. Chagan Bhai Patel MIPR 2009 (1) 194, this Court observed that it would be encouraging the violators of intellectual property, if the defendants notwithstanding having not contested the suit are not burdened with punitive damages.

Also, the Court needs to take note of the fact that a lot of energy and resources are spent in litigating against those who infringe the trademark and copyright of others and try to encash upon the goodwill and reputation of other brands by passing of their goods and/or services as those of that well known brand. If punitive damages are not awarded in such cases, it would only encourage unscrupulous persons who actuated by dishonest intention, in the case of a trademark use the well-reputed trademark of another person, so as to encash on the goodwill and reputation which that mark enjoys in the market, with impunity or in the case of a software use the pirated software thereby depriving the copyright owner of the revenue to which he is entitled by sale of license to use that software and then avoid payment of damages by remaining absent from the Court, thereby depriving the plaintiff an opportunity to establish actual profit earned by him from use of the infringing mark/pirated software, which, if he is using the infringing mark/pirated software for business purposes, can be computed only on the basis of his account books. This would, therefore, amount to putting premium on dishonesty and give an unfair advantage to an unscrupulous infringer over those who have a bona fide defence to make and therefore come forward to contest the suit and place their case before the Court.

17. 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 license fee which they get on sale of licenses, since it is only from that money that they can develop new softwares by making substantial investments in research and development. Also, use of pirated software by a commercial enterprise needs to be dealt with more strictly than use by an individual for his personal purposes.

Since defendant has been found using the pirated software of the plaintiff company for its commercial purposes, there is likelihood of the defendant persisting with the use of these pirated softwares. In fact, the defendant has been persistent in imparting training using the pirated software of the plaintiffs as is evident from the e- mail sent by him.

18. It is true that the plaintiffs have not specifically claimed damages in the prayer clause but in para 26 of the plaint, they have valued the suit at Rs.6 Lacs for the purpose of damages and have also paid the requisite Court fee on it. Therefore, the relief of damages in such circumstances can be granted to the plaintiffs in the residual prayer contained in para 27 of the plaint.