Microsoft Corporation vs Mr. M. Gupta and Another

Rajiv Sahai Endlaw, J.—The counsel for the plaintiff states that the defendants have not responded to the compromise proposal of the plaintiff. The defendants have not been appearing before this Court also for the last three dates. Today also none appears for the defendants. The defendants are ordered to be proceeded against ex parte.

The counsel for the plaintiff states that the plaintiffs in this case are not pressing the relief of damages and cost and are pressing for the relief of injunction only.

In the circumstances, and since plaint is accompanied by affidavit confirming its contents, it is not deemed expedient to direct plaintiff to file affidavit by way of evidence. In the facts of the case also, the same is not found necessary. The counsel for the plaintiff has been heard.

The plaintiff which is engaged in the business of development, manufacture, licensing inter-alia of software programmes for computers, instituted the present suit on the ground that the defendant No.1 carrying on business in the name and style of defendant No.2, from a shop in the Nehru Place area which is the hub of computer hardware and software in Delhi, is carrying on business of selling computer software and hardware including software programmes of the plaintiff; that the defendants are illegally distributing and selling counterfeit software products of the plaintiff; that the plaintiff on receiving information had got executed a purchase from the defendant and on the examination whereof it turned out to be counterfeit and not genuine software programmes of the plaintiff though bearing the trademark and other labels/devices of the plaintiff; that the defendants while making such sales do not issue any sale invoices/bills. The plaintiff claimed that the defendants were thereby infringing the registered trademark of the plaintiff and passing off their goods as that of the plaintiff and to the detriment of the plaintiff. The plaintiff thus instituted this suit for the reliefs of permanent injunction, delivery, damages, rendition of accounts etc.

Vide ex parte order dated 10th November, 2005, this Court restrained the defendants from selling etc. counterfeit/unlicensed versions of the plaintiff�s software in any manner or from otherwise infringing the copyright of the plaintiff. A court commissioner was also appointed. The court commissioner has reported that on reaching the premises of the defendants at Nehru Place he was met by one Mr. Rinku Kumar who introduced himself as Sales Manager- cum-Shop Caretaker of the defendants and who also made the commissioner speak to the defendant No.1 on telephone; that during inspection counterfeit goods/software of the plaintiff as detailed in the report of the court commissioner were found and which in terms of the orders of this Court were given on superdari to the aforesaid Mr. Rinku Kumar of the defendants.

The defendants on service of summons appeared and filed a written statement. The defendants denied all the averments in the plaint. The defendants in their written statement claimed to be carrying on business of sale of CD�s of computer games and educational CD�s of Maya Software on commission/margin basis, as retailers. The plaintiff filed a replication and on 25th January, 2007 the following issues were framed:

Whether the plaintiff owns the copyrights and trademarks which are the subject matter of the suit? OPP

Whether the defendants have infringed the copyrights of the plaintiff as subsisting in its software programmes? OPP

Whether the defendants have infringed the registered trademarks of the plaintiff? OPP

Whether the defendants have passed off counterfeit/pirated versions of the plaintiff�s software as genuine goods of the plaintiff as alleged in the plaint? OPP

Whether the plaintiff is entitled to the relief as prayed for in the plaint? OPP

Relief.

The matter was thereafter adjourned from time to time for the purposes of compromise. However, as aforesaid the defendants stopped appearing and have been proceeded ex parte. In view of the statement aforesaid of the counsel for the plaintiff the only question to be decided as whether the plaintiff is entitled to the relief of injunction.

The case of the plaintiff is of the defendant selling counterfeit goods of the plaintiff. The same was also found by the court commissioner appointed by this court. The defendants even though ex parte had filed a written statement in which without specifically denying the rights claimed by the plaintiff in the plaint and which are deemed to have been admitted by the defendants, the defendants generally denied carrying on business of sale of counterfeit goods of the plaintiff. The defendants could not be expected to admit carrying of business in counterfeit goods. However, the factum of the defendants choosing not to contest the present case and also not to compromise with the plaintiff leads one to belief that the defendants by now must have either shut down the business in the name and style of the defendant No.2 and/or must not be carrying on the same from the place from where they were earlier carrying on the business. The defendants cannot possibly have any right to sell the counterfeit goods of the plaintiff. It goes without saying that such action of the defendants would be to the detriment of the plaintiff. Even otherwise the infringement of trademark, copyright of the plaintiff and some of counterfeit goods of the plaintiff appears to be rampant from the large volume of cases of the plaintiff in this Court itself.

Therefore, the defendants directly or indirectly and their agents are restrained by way of permanent injunction from copying, selling, offering for sale, distributing, issuing to the public counterfeit/unlicensed versions of the plaintiff�s software in any manner, amounting to infringement of the plaintiff�s copyright in the computer programmes and related manuals and from unauthorizedly using the plaintiff�s software programmes, trademark dress or any other deceptive variant thereof. Decree sheet be drawn up.