SEMESTER VIII

SECOND INTERNAL ASSESSMENT

TOPIC: DRAFTING A SUIT WITH INJUNCTIVE RELIEF

Subject: Law Of Injunction

Name Of Student: Vanshika Singh

Prn No.: 19010125473

Course: Iv Year | Ba Llb (Honours)

Division: E

PLEASE NOTE: DUE TO THE LIMITED INFORMATION ABOUT THE

DEFENDANT IN THE ORIGINAL JUDGEMENT, THE SAME HAS NOT

BEEN WRITTEN

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 IN THE HIGH COURT OF DELHI AT NEW DELHI

(Ordinary Original Civil Jurisdiction)

C.S. (O.S.) No. 1623/2014

Between:

Microsoft Corporation

One Microsoft Way,

Redmond, WA

98052-6399, USA

……….Plaintiff No. 1

Microsoft Corporation Private Limited

Eros Corporate Towers

5th Floor, Nehru Place

New Delhi-110 019

……….Plaintiff No. 2

Versus

Prithviraj & Anr

New Delhi-110 019

……….Defendants

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SUIT FOR PERMANENT INJUNCTION, RESTRAINING INFRINGEMENT
OF COPYRIGHT, DAMAGES,RENDITION OF ACCOUNTS OF
PROFITS,DELIVERY UP ETC.

I. FACTUAL BACKGROUND

Case of the plaintiffs:

SOFTWARE

1. Plaintiff No.1, in the present case is Microsoft Corporation, which is a company that

operates under the laws of the state of Washington in the United States. It is located at One

Microsoft Way, Redmond, WA 98052-6399, USA, and was established in 1975. It is the

largest publisher of software for personal and business computing globally, with a range of

software products that includes operating systems for servers, personal computers, and

intelligent devices. They also offer server applications for distributed computing

environments, productivity applications for information workers, and software

development tools. Additionally, Plaintiff No. 1 is involved in the sale of video game

consoles (Xbox), video games, and conducts online business through various Internet

portals (such as MSN)

2. Plaintiff No. 1 has become a household name, known for its innovative software and

hardware products that have revolutionized the tech industry. The company's success can

be attributed to its ability to create user-friendly products that meet the changing needs of

its customers. Microsoft has a diverse range of products that are used by millions of people

worldwide. One of its most well-known products is the Windows operating system, which

is used by over 1.3 billion people worldwide. In addition to its operating system, Microsoft

also produces other software products, such as Microsoft Office.

3. The ‘Microsoft Office’ family includes versions like Office 97, Office 2000, Office XP,

Office 2003, Office 2007, Office 2010 and the product line includes Microsoft Access,

Microsoft Excel, FrontPage, Microsoft Word, PowerPoint, Microsoft Project, Publisher

and Outlook to name a few. These softwares are today installed and used on millions of

computers all over the world, including India. The products of the Plaintiff No. 1 are

distributed in New Delhi through various authorized distributors.

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 4. Plaintiff No. 2, Microsoft Corporation India Private Limited, is a wholly-owned marketing

subsidiary of Plaintiff No. 1, Microsoft Corporation, located at Eros Corporate Towers, 5th

Floor, Nehru Place, New Delhi-110 019. Plaintiff No. 2 was incorporated and registered

under the Indian Companies Act, 1956, in 1989 to provide marketing, promotion, anti-

piracy awareness campaigns and actions, and channel development support to Plaintiff No.

1 and/or its affiliates. Furthermore, Plaintiff No. 1's products are distributed in New Delhi

through authorized distributors.

COPYRIGHT OF THE PLAINTIFFS IN THE SOFTWARE

5. The varied range of softwares being published by Plaintiff No. 1 constitute the following-

A. “computer programme” under Section 2(ffc) of the Copyright Act,1957 (“Act”).

B. “literary works” under Section 2(o) of the Act.

6. The plaintiffs' diverse range of computer peripherals, including their successful Mouse and

Keyboard, have become a hallmark of their reputation for technological expertise in the

hardware industry. Their extensive experience in designing and launching these devices

has established their position as leaders in the market.

7. It has been established that the computer programs created by Plaintiff No. 1's employees

are considered "works" under the US Copyright Law and have been registered in the USA.

As per the 'Work made for Hire' doctrine under the US Copyright Law, the copyright of a

work created by an employee belongs to the employer, which in this case, is Plaintiff No.

1. The computer program, along with the supplementary user instructions and manuals, is

deemed to be an "original literary work" as defined in Section 2 (o) and Section 13 (1) (a)

of the Act. Consequently, Plaintiff No. 1 is the rightful owner of the copyrights pertaining

to these works.

8. Since the works of Plaintiff No. 1, including the manuals, End-User Agreement,

supplementary user instruction etc are “literary work” within the meaning of Section 2(o)

of the Act, Plaintiff No. 1, qualifies to be the first owner of the copyright vested therein as

per Section 17(c) of the Act. Consequently, Plaintiff No. 1 is entitled to the following rights

under Section 14(b) of the Act:

a. “the right to reproduce the work in any material form, including storing it in
any medium by electronic means

b. to issue copies of the work.

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 c. to make an adaptation or translation of the work

d. or a computer programme, the additional right to sell or give on commercial

rental, or offer for sale or commercial rental any copy of the computer

programme.

e. the right to authorise the doing of any of the aforesaid acts…”

9. It is asserted that India and USA are both signatories to the both Berne Convention and

Copyright Convention, Plaintiff No.1’s works are legally protected in India. As per Section

40 of the Copyright Act, 1957, read with the International Copyright Order, 1999, the

Plaintiff No. 1's works are protected in India.

INFRINGEMENT BY DEFENDANT

10. According to the plaintiffs, their intellectual property rights have been severely violated

due to multiple cases of copyright infringement of their software programs. These instances

of copyright infringement have caused incalculable damages to the plaintiffs, affecting

their ability to profit from their intellectual property and impeding their innovation and

creativity.

11. In July of 2010, the cause of action arose when the Plaintiffs received information that

the Defendants were involved in the unauthorized Hard Disk Loading of the Plaintiffs'

software on branded computer systems sold to the Defendants' customers. The Plaintiffs

allege that this activity constitutes a violation of their copyrights, trademarks, and other

intellectual property rights. Furthermore, the software that was allegedly loaded onto these

systems was unlicensed and did not come with the original media, such as software

installation CDs, certificates of authenticity, end-user license agreements, or user

instruction manuals, that are typically included with genuine software from the Plaintiffs.

The lack of these accompanying materials further supports the Plaintiffs' claims of

copyright infringement and other violations of their intellectual property rights.

12. One Mr. Shubham Jain, an independent investigator, was hired by the Plaintiffs to look into

the infringing activities of the Defendants. Accordingly, Mr. Jain bought a computer system

from the Defendants on 29th July 2010 and discovered that the system was loaded with

pirated version of the software developed by the Plaintiff No. 1. The report of Mr. Jain is

contained in “Annexure I” attached herewith.

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 13. One Ms. Urmila Sahu, a technical expert, appointed by the Plaintiffs, on 2nd August 2010

took photographs of the computer box containing the laptop computer system that was

allegedly loaded with the Plaintiffs' unlicensed software. After opening the box, the expert

inspected the laptop and took printouts, or screenshots, of the directory of its hard disk.

The printouts clearly showed that following software programs belonging to the Plaintiffs

were present on the laptop that was sold by the Defendants, illegally:-

Operating system: Microsoft Windows 7 Ultimate

Registered to: Admin PC

Registration No.: 00426-OEM-8992662-00400

Application Software: Microsoft Office 2007 (Access, Excel, Groove, Infopath, One Note,

Outlook, Power Point, Publisher, Word)

Licensed to: Admin

Product ID: 89388-707-0441865-65343

The report of the technical expert is contained in “Annexure II” attached herewith.

LOSS INCURRED BY THE PLAINTIFF

14. The Plaintiffs assert that computer programs are the result of intensive human skill, labour,

and ingenuity, making them no less valuable than any other copyrighted work. As vital

components of advanced information processing technology, it is crucial to restrict the

illegal trade activities of traders like the Defendant and curb the dangerous growth of

computer software piracy. The Plaintiffs' expert has stated in their deposition that the

computer industry is a high investment industry, requiring significant investments of not

only money but also valuable time, skill, and effort to develop new and advanced computer

programs and software. As such, the Plaintiffs, like others engaged in this industry, rely

heavily on copyright protection in jurisdictions where piracy and infringement of their

works occur. The protection of intellectual property is essential to promote innovation and

creativity in the field of computer software and ensure that inventors receive appropriate

compensation for their efforts.

15. It is humbly submitted before the Hon’ble High Court that Defendants’ infringing
activities have made them a revenue of lakhs of Rupees, the exact number of which, is

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 difficult to quantify, considering the prolonged nature of the Defendant’s activities.

Therefore, after much consideration, the Plaintiffs have narrowed the claim of damages to

Rs. 20,00,000/-, on the basis of the following factors.

16. Firstly, the actual illegal profits earned by the Defendants from selling more computers

loaded with pirated software programs of the Plaintiffs. Secondly, the actual revenue lost

by the Plaintiffs due to the loss of sales of original software resulting from the

illegal/infringing activities of the Defendants. Thirdly, the damage to the Plaintiffs'

enormous reputation and goodwill in several ways, for instance the customers of the

computers sold by the Defendants with pirated software of the Plaintiffs are likely to

believe that such infringing practice of the Defendants is authorized by the Plaintiffs. Or

the Defendant's customers will accuse the Plaintiffs and their software products of being

of poor quality. The unauthorized and widespread reproduction and dissemination of the

Plaintiffs' software programs by the Defendants can damage the reputation and goodwill

associated with the well-known MICROSOFT trademark owned by the Plaintiffs. This, in

turn, may lead to a reduction in the trademark's uniqueness and positive connotations,

thereby causing the public to no longer exclusively identify it with the Plaintiffs.

17. The legal representatives of the Plaintiffs, approached, Mr. B.K. Anand, a Chartered

Accountant, for assessing the financial losses incurred by the Plaintiffs. On the basis of

facts, documents on record, deposition of the technical expert, report of the investigator

etc, Mr. Anand calculated the loss of Rs. 16,32,000/-. His findings and the basis thereof are

included in the affidavit filed with the present suit.(“Annexure III”)

18. The findings of the local commissioner are also filed through his reports (“Annexure IV”).

The reports of the local commissioner, in consonance with that of the technical expert

reveal that for all the softwares found in the laptop sold by Defendants there was no

certificate of authorization or any license. Similarly, the second system running in the

Defendant’s shop was also found to be loaded with pirated/unlicensed version of the

Plaintiff No.1’s softwares.

JURISDICTION

19. It is humbly submitted before the Hon’ble High Court that the cause of action is a

continuing one and shall continue until the Defendants are restrained by an order of

permanent injunction of this Hon’ble Court.

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 20. It is stated that this Hon’ble Court has jurisdiction by virtue of Section 20 of the Civil

Procedure Code,1908, due to the fact that cause of action arose within the territorial

jurisdiction of this Hon’ble Court. Additionally, Section 62(2) of the Copyright Act,1958,

also confirms the aforementioned jurisdiction.

II. PRAYER

21. It is, therefore, humbly prayed that this Hon’ble Court be pleased to grant the following

reliefs:-

(a). Pass an order for permanent injunction restraining the Defendants, their

representatives, employees, agents etc from directly or indirectly

reproducing/storing/installing and/or using pirated/unlicensed software programmes of the

Plaintiff No.1 thereby infringing copyright in the Plaintiffs’ computer

programmes/software titles;

(b). An order for rendition of accounts of profits, directly or indirectly earned by the

Defendants from their infringing activities and a decree for the amount so found due to be

passed in favour of the Plaintiffs;

(c). An order for delivery up by the Defendants of all unlicensed/pirated version of the

Plaintiffs’ software and destroy all copies of the plaintiff's software in their possession or

control or any other material infringing the trademarks/copyrights of the Plaintiffs, lying

in the possession of the Defendants and their proprietors, partners, employees, agents,

servants etc;

(d). A decree of damages of Rs. 20,00,000/- in favour of the Plaintiffs’ and against the

Defendants for the loss of sales, reputation and goodwill of the Plaintiffs caused by the

illegal activities of the Defendants;

(e) An order as to the costs of the proceedings in favour of the Plaintiffs;

Any further order as this High Court may deem fit and proper in the facts and circumstances of the

case.

PLAINTIFF NO.1 & 2

Through

______________

(Mr.Achuthan Sreekumar)

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 Power of Attorney Holder

______________

Mr. Ashish Somasi

Advocate for the Plaintiffs’
Delhi

Dated: 11th August 2010

VERIFICATION

Verified at Delhi on this 11th day of August 2010 that the contents of paras 1 to 21 of the

plaint are true to my knowledge derived from the records of the Plaintiff maintained in the

ordinary course of its business, those of paras 1 to 21 are true on information received and

believed to be true and last para is the humble prayer to this Hon’ble Court.

______________

Mr.Achuthan Sreekumar

(POWER OF ATTORNEY HOLDER)