TMI Blog2005 (2) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... greement permits the use of the CD's/flopies, as per conditions. 2. It is stated in the plaint that the defendants, without a license are loading the software on the hard disk of computers being sold by them and in this manner are causing financial loss to the plaintiff. It is alleged that the defendants do not have any permission from the plaintiff to copy or sell the licensed programmes 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Plaintiffs, the duplicating equipment used in the copying the software of the Plaintiffs, including computers, compact disc writers, stampers, burners, 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 business as the goods and business of the Plaintiff, and a decree be passed against the defendants in the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are 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 the bill of the defendants, on the sale price of a computer it is established that the sale price was ₹ 27,050/- as of 3.9.2002. (iii) On the assumption that the defendant sell approximately 100 computers a year, which is purely assumptive, on the further assumption that keeping in view the operating systems Windows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 Arora was being loaded, by the defendants with the software of the plaintiff. 10. Evidence on record establishes that Mr. Nikhil Krishnamurthi is competent to file and institute the suit on behalf of the plaintiff. The verification of the plaint is in order. Evidence also establishes that the plaintiff is the registered proprietor of the trade mark/name MICROSOFT and that the copyright in the computer software programmes:-(a) MS Windos 98, (b) MS Office 2000 and (c) MS Visual Studio 6.0 vests in the plaintiff. 11. Evidence further esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve which includes the sown affidavit of an employee of the plaintiff, defendants are proved to be pirating the software of the plaintiff. 19. It stands established that the defendants have infringed the plaintiffs copyright by making illicit copies of the operating systems software by openly copying whatever operating system is currently salable. As observed in Microsoft Corporation v. Electrowide Ltd. and Anr. (1997) FSR 580 by Mr. Justice Laddy of the High Court of Justice, Chancery Division, this constitutes a general threat to infringe the copyright in the class of software. 20. Defendants are in the business of sale of computers. One can safely presume that they had knowledge that the products being sold were infringing copies. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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