G.S. Sistani JUDGMENT
G.S. Sistani, J.
1. The Plaintiff has filed the present suit for permanent injunction, delivery up, rendition of accounts and damages against the Defendants for infringement of copyrights, infringement of trademarks and passing off.
2. The facts, as set out by the Plaintiff, are as follows. The Plaintiff, Microsoft Corporation, is a company organised and existing under the laws of the State of Washington, USA. It has, however, its presence all over the world. In New Delhi, it has its marketing subsidiary Microsoft India Pvt. Ltd. The Plaintiff is world famous for its business software such as Microsoft Windows, Microsoft Office etc. which are installed and used on millions of computers all over the world including India. It also manufacturers a large range of computer peripherals (hardware). The hardware group was established in year 1982 and during this period, the Plaintiff has built its reputation for technological expertise in hardware by developing and launching a series of successful devices including the economically designed 'Mouse' and Keyboard.
3. It is stated that the software developed and marketed by the Plaintiff is a "computer programme" within the meaning of Section 2(ffc) of the Copyright Act, 1957 and included in the definition of a literary work as per Section 2(o) of the said Act. The Plaintiff's computer programmes are "works" that were first published in the USA and are also registered in the USA. These programmes have been created by employees of the Plaintiff for the Plaintiff. Under the US Copyright Law. US Code Title 17, Section 201(b), the copyright is a work created by an employee and belongs to the employer under the 'Work made for Hire' doctrine. Both the computer programme, as well as the supplementary User Instructions and Manuals, are 'original literary works' as contemplated under Section 2(o) and Section 13(1)(a) of the Copyright Act, 1957. The Plaintiff is the owner of the said copyright. A complete list of the software programme owned by the Plaintiff is filed with the plaint. It is further stated that the rights of authors of member countries of the Berne and Universal Copyright Conventions are protected under Indian copyright law. India and the USA are signatories to both the Universal Copyright Convention as well as the Berne Convention. The Plaintiffs works are created by authors of member countries and originate from and are first published in the said member countries. Plaintiffs works are, thus, protected in India under Section 40 of the Copyright Act, 1957 read with the International Copyright Order, 1999. It is thus the case of that the Plaintiff that being the owner of the copyright in the aforesaid literary works within the meaning of Section 17 of the Copyright Act, 1957 is entitled to all exclusive rights flowing from such ownership as set out in Section 14 of the said Act.
4. The Plaintiff claims to be the proprietor of the trademark "Microsoft" which was adopted by the Plaintiff in the year 1970. The Plaintiffs registration for the said marks are in Classes 9 and 16 bearing Registration Nos. 430449B and 430450B in Classes 9 and 16 respectively. The said registrations are still valid.
5. In October 2002, it came to the knowledge of the Plaintiff that the Defendants were infringing the Plaintiffs copyrights, trademarks and other intellectual property rights by carrying on the business of unauthorised hard disk loading. In other words, the Defendants were pre-loading various software of the Plaintiff on to the hard disk of the computers that were being assembled and sold by them. A decoy customer, namely, Mr. Ravindra Pawar, was sent to the outlet of the Defendants on 05.10.2002 and 23.10.2002 to place an order for a computer. On 24.10.2002, the decoy customer was given the delivery of the computer which, it is alleged, was loaded with the unlicensed software of the Plaintiff company. Affidavit of Mr. Ravindra Power is filed alongwith the plaint.
6. On 01.11.2002, a Technical Expert, Mr. Sunil John, inspected the computer purchased from the Defendant and took print-outs of the directories of the hard disk, which, as stated in paragraph 2 of his affidavit, clearly evidenced the fact that the........