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Microsoft Corporation Versus Mr. Yogesh Papat And Anr.

2005 (2) TMI 880 - DELHI HIGH COURT

CS(OS) No. 103/2003 - Dated:- 22-2-2005 - P. Nandrajog, J. For Appellant: Pravin Anand, Adv For Respondents:Nemo JUDGMENT Pradeep Nandrajog, 1. Plaintiff is the registered proprietor of the trade mark 'MICROSOFT'. The mark is registered in class 9 and 16 vide registration No. 430449-B and 430450-B. Plaintiff claims to have created various kinds of software in which plaintiff claims a proprietory right. When the software is sold, purchaser has a license agreement setting out the terms of .....

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ogrammes as per software developed by the plaintiff. Following reliefs are prayed for:- a) An order for permanent injunction restraining the defendants, their directors, officers, servants and agents and all others acting for and on their behalf from copying, selling, offering for sale, distributing, issuing to the public, counterfeit/unlicensed versions of the Plaintiffs' software, in any manner, amounting to infringement of the Plaintiffs' copyright in the said computer programs and re .....

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ks; c) An order for permanent injunction restraining the defendants, their directors, officers, servants and agents and all others acting for and on their behalf, from unauthorisedly selling, offering for sale, distributing the Plaintiffs' software and/or any other product to which the Plaintiffs' trademarks, or any deceptive variants thereof has been applied without the license of the Plaintiffs, amounting to passing off of the counterfeit/unlicensed software and products as genuine pro .....

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s, "plates" as defined in Section 2(t) of the Act, hard disks, diskettes, packaging and advertising material, labels, stationery articles and all other infringing material under Section 59 of the Act; e) An order for rendition of accounts of profits illegally earned by the defendants by reason of infringement of the Plaintiff's copyright, including conversion damages which are presently indeterminate, infringement of trademarks as aforesaid and by passing off their goods and/or bus .....

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- (i) Ex.P.1, power of attorney issued by the plaintiff company in favor of Mr. Nikhil Krishnamurthi to institute the suit, sign and verify the pleadings. (ii) That the plaintiff is in the field of computer programmes (Software), the said computer software includes various operating systems such as MS-DOS, Microsoft Windows and Microsoft Office. (iii) Ex.P.2, P.3, P.4 and P.5, being the computer programmes developed by the plaintiff named (a) Microsoft Office 2000, (b) Microsoft Windows 98 Opera .....

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chased from the defendants by Mr. Vikas Arora and reported loading of pirated software of the plaintiff on the hard disk. 6. Plaintiff has also filed affidavit by way of evidence of Shri Sanjiv Sharma a Chartered Accountant. Said evidence brings on record and proves the following:- (i) Evidenced from the bill issued by the defendants on 3.9.1992, the fact that the defendants are in business since 1.4.1996 because of the reason the bill records sales tax registration w.e.f. 1.4.1996. (ii) From th .....

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software Office 2000 STD and Visual Studio 6.0, on the cost per unit of the licensed software estimated loss of business to the plaintiff comes to ₹ 64 lacs. (iv) Minus dealers profit of ₹ 2.40 lacs, net revenue loss has been worked out at ₹ 61.6 lacs. (v) On the basis of the annual returns of the plaintiff, average profit having been worked out over the last 4 years, evidence of this witness establishes that the gross profit of the plaintiff being 32.1%, loss of profit to the .....

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No. 2 was printed showing said defendant to be a dealer in computers and electronic components. The affidavit of Mr. Vikas Arora further establishes that on his instances defendant No. 1 gave a bill dated 3.9.2002 pertaining to sale of a computer. The bill does not list any software, software literature or CD being sold. 9. Annexure P.9 proved by Shri Nikhil Krishnamurthi, being the affidavit of Mr. Sunil John, a computer expert, proves that the hard disk of the computer purchased by Mr. Vikas .....

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the plaintiff. 11. Evidence further establishes hard disk piracies by the defendants. It establishes that the defendants are pirating software of the plaintiff and are loading the same on the hard disk of the computers sold by said defendants without permission from the plaintiff. 12. Though assumptive i.e. based on the assumption of sale of 100 computers each year and on the basis of the popularity of the computer software, as also sold computers being loaded with the pirated software, loss of .....

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name of defendant No. 2. 16. Before a computer can function to carry out the tasks required by its owner, it has to be properly loaded with one or more operating systems. The operating system is nothing but a software contained in a CD. The defendants are supplying computers pre-loaded with the software of the plaintiff. 17. The software being pre-loaded in the computers sold by defendants is a software, copyright whereof vests in the plaintiff. 18. Unchallenged evidence of the witnesses of the .....

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