Without any explicit permission or licence to use Plaintiff’s software, Defendants have been blatantly installing/using pirated software to train students amounting to unauthorised reproduction of Plaintiff’s copyrighted software.

MIPR 2018 (1) 0031= MANU/DE/3018/2017

 

IN THE HIGH COURT OF DELHI

SAPSE

  1. Newyorksys Info Solutions Private Limited and Anr.

CS (COMM.) 447/2016 DECIDED ON: 26.09.2017

Judge

Manmohan, J.

Counsel

For Appellant/Petitioner/Plaintiff: Ranjan Narula and Astha Joshi, Advs.

Case referred

Ramesh Chand Ardawatiya v. Anil Panjwani MANU/SC/0387/2003: AIR 2003 SC
2508: 2003 (4) ALD 10 (SC): 2003 (4) ALLMR (SC) 1193: 2003 (51) ALR 699: 2003
(3) AWC 2511 (SC): JT 2003 (4) SC 450: 2003-4-LW 579:2003 (4) MhLJ 579: 2003 (4)
MhLJ 579 (SC): (2003) 3 MLJ 26 (SC): 2003 MPLJ 439 (SC): (2003) 134 PLR 636:
2003 (2) RCR (Civil) 828:2003 (4) SCALE 652: (2003) 7 SCC 350: (2003) 3 SCR 1149:
2003 (2) UJ 1210

Copyright Act, 1957

Section 2(ffc)                                                                                        

Section 2(o)                                                                                            [

Trade mark Act, 1999

Section 29                                                                                            

 HEAD NOTE

Copyright – Infringement – What constitutes.

HELD, Plaintiff’s witness has proved copies of Trade mark Registration Certificates in favour of Plaintiff. Due to extensive worldwide use over substantial period of time, Plaintiff’s SAP mark and SAP logo have acquired reputation and goodwill in marks globally as well as in India. Further, as Plaintiff’s evidence has gone unrebutted, said evidence is accepted as true and correct. Without any explicit permission or licence to use Plaintiff’s software, Defendants have been blatantly installing/using pirated software to train students amounting to unauthorised reproduction of Plaintiff’s copyrighted software. Consequently, allegation that Trade mark, logo, label and software pertaining to SAP used by Defendants on their website amounts to infringement of Plaintiff’s Copyright, is accepted

Use of illegal trade activities by Defendants is bound to cause incalculable losses, harm and injury to Plaintiff and immense public harm. Accordingly, present suit is decreed in favour of Plaintiff.

JUDGMENT

Manmohan, J.

  1. Present suit has been filed for permanent injunction restraining infringement of Copyright, Trade mark, passing off, rendition of accounts of profit, damages and delivery up etc. The prayer clause in the suit is reproduced hereinbelow:-
  • An order of Permanent injunction restraining the Defendant, its principal
    officers, directors, agents, franchisees, servants and all others acting for and
    on its behalf, from directly or indirectly reproducing/installing, providing
    training on software programmes of the Plaintiff, including but not limited to
    SAP ERP (functional and technical modules), SAP CRM, SAP SCM, SAP HANA
    SAP-ABAP and SAP FICO including the use of all training manuals, course
    material etc. which are published by the Plaintiff or copies thereof, amounting
    to infringement of the Plaintiff’s Copyright in its SAP computer programs;
  • An order of Permanent injunction restraining the Defendant, its principal
    officers, directors, agents, franchisees, servants and all others acting for and on
    its behalf, from directly or indirectly from using the well known Trade mark SAP
    or SAP label, either by itself or in conjunction with any other word or mark, or
    any deceptive variant of the well known Trade mark SAP or any other mark of
    the Plaintiff, as Trade mark or trading style or domain name or key words or
    meta-names, amounting to infringement of the Plaintiff’s Registered and well
    known Trade marks Registered under various classes including Registration
    989935, 576754, 576755 in class 9, Registration Nos. 879285, 578461, 578462
    in class 16, and Registration Nos. 1238968, 1238969 in class 41.
  • An order restraining the Defendant, its principal officers, directors, agents,
    franchisees, servants and all others acting for and on its behalf, from directly
    or indirectly operating the  websites www.newyorksystraining.com,
    newyorksys.com, www.businessintelligenceonlinetraining.com,
    www.businessobjectstrainingonline.com,             www.boditraining.com,
    www.ficotraining.com,                                    www.grconlinetraining.com,

www.hanatrainingonline.com,                       www.objectsbusiness.com,

www.sapapofscmtraining.com,           www.sapbasisonlinetraining.com,

www.sapficoonlinetraining.com, www.saphanaonlinetraining.com,
www.saphronlinetraining.com,                   www.sapplmpptraining.com,

www.sappsrm-wmtraining.com,                         www.traininghana.com,

www.trainingsaphana.com, www.trainingnetweaver.com, and any other website offering training/courses in the name of SAP without authorization to inactive their websites and authorizing the transfer of ownership of the said domain names in favour of the Plaintiff.

  • An Order and Decree of Permanent Injunction restraining the Defendant, its
    Directors, Partners, officers, servants, employees, franchisees, agents,
    representatives and all others acting for and on its behalf from using the well
    known Trade mark SAP, either by itself or in conjunction with any other word or
    mark, or any deceptive variant of the well known Trade mark SAP, or any other
    mark of the Plaintiff, as a Trade mark or trading style or domain name or keywords
    or meta-names, amounting to passing off of the business/services/products of
    the Defendant   as   or   for   those   of   the   Plaintiff   or   having   any
    connection/association with the Plaintiff
  • An Order for Delivery up of all unlicensed/pirated Plaintiff’s software
    contained in hard discs, compact discs, and/or other storage media, including
    any CD/DVD/Writers/Burners or servers, whether hosted at their premises
    through remote servers or any other material infringing the Plaintiff’s Copyright
    in its   computer   programs   including   Plaintiff’s   User   Instruction
    Manuals/training manuals, and of all the signboards, display boards, impugned
    goods, articles and items that have upon it, mark that is identical/deceptively
    similar to that of the Plaintiff’s mark SAP or any other material infringing the
    rights of the Plaintiff, lying in the possession of the Defendant and/or their
    principal officers, directors, agents, franchisees, servants etc.
  • An order for the Rendition of Accounts of profits illegally earned by the
    Defendant by reason of infringement of Plaintiff’s Copyright and Trade marks
    and passing off, as aforesaid and a Decree be passed against the Defendant in
    the sum of the amount so ascertained.
  • A decree for punitive or exemplary damages to the tune of Rs. 20,00,000 be
    passed in favour of the Plaintiff and against the Defendants for wilful
    infringement of Plaintiff’s statutory and vested rights.

(h) Any other and further orders, as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case as well as in the interests of justice, be passed in favour of the Plaintiff and against the Defendant.

  1. At the outset, learned Counsel for Plaintiff gives up prayers (e) (f) and (g) of the
    prayer clause to the suit. The statement made by learned Counsel for Plaintiff is
    accepted by this Court and Plaintiff is held bound by the same.
  2. Vide order dated 15th July, 2015 this Court granted an ex-parte ad interim injunction
    in favour of the Plaintiff and against the Defendants. The relevant portion of the
    ex-parte injunction order is reproduced hereinbelow:-

Accordingly, the Defendants are restrained directly or indirectly in offering and/or providing training of software programmes of Plaintiff, including but not limited to SAP ERP (functional and technical modules), SAP-CRM,
SAP-SCM, SAP-HAN A, SAP-AB AP and SAP-FICO including the use of all training
manuals, course material etc. which are published by the Plaintiff or copies thereof,
amounting to infringement of the Plaintiff’s Copy right. The Defendants are also
restrained from using directly or indirectly the mark ‘SAP’ or trading style or
domain name, that is, www.sapbasisonlinetraining.com,
www.sapficoonlinetraining.com.,          www.saphanaonlinetraining.us,

www.saphronlinetraining.com,                     www.sapplmpptraining.com,

www.sapsrm-wmtraining.com,                  www.sapapofscmtraining.com,

www.trainingsaphana.com, amounting to infringement of the Plaintiff’s Trade mark. Defendants are further restrained from providing any software training and courses by mentioning the Plaintiff’s Trade mark on their other websites, in any manner, which may give impression that they are associated with the Plaintiff.

  1. Since the Defendants did not appear despite service, they were proceeded ex-parte
    vide order dated 9* January, 2017.
  2. It has been averred in the plaint that Plaintiff is a German company and the owner
    of the Copyright in the software programmes and products which are developed
    and marketed by it including SAP ERP 2005, SAP-HANA, SAP security and SAP
    The aforesaid software programmes are computer programmes within the
    meaning of Section 2(ffc) of the Copyright Act, 1957 and are included in the definition
    of a ‘literary work’ as per Section 2(o) of the Copyright Act, 1957. It has been further
    averred that the Plaintiff has a wholly owned Indian subsidiary which is responsible
    for the sales of SAP solutions, implementation, post-implementation support,
    training and certification of its customers and partners in India.
  3. It has been stated in the plaint that the Plaintiff coined, adopted and commenced
    the use of Trade mark SAP in the year 1972 and it forms an integral part of the
    Plaintiff’s trade and business and acts as a distinctive identifier of the Plaintiff’s
    The Plaintiff’s own the domain name www.sap.com and its mark SAP
    and SAP label is Registered in various classes including Classes 9, 16 and 41 under
    the Trade mark Act, 1999.
  4. Ranjan Narula contends that the Plaintiff provides various business solutions
    to its customers which are collectively called as SAP Business Suite. He states that
    the software products of the Plaintiff are customised solutions tailored to the specific
    needs of each client and are not available off-the-shelf, or through e-stores or resellers
    or with any computer hardware vendors as an Original Equipment Manufacturer
    (OEM) product or as a gift. She further states that due to the high levels of
    customisation of the Plaintiff’s software products or SAP software products, the
    Plaintiff has purpose-specific versions of its software license agreements. She also
    states that license given by the Plaintiff for a particular purpose cannot be used for
    any other purpose i.e. a EULA (End User License Agreement) license does not permit
    the licensee to provide training to any third party except as specifically provided.
    She points out that for  training  purposes,  the  Plaintiff enters  into  an
    Education/Training License agreement with the Licensee.
  5. Mr. Narula states that in June, 2015, it came to Plaintiff’s knowledge that the
    Defendant No. 1 is claiming to be a leading SAP Training Institute, offering online
    SAP training, in Hyderabad, falsely representing to be based in New York and is
    operating through websites www.newyorksystraining.com, www.newyorksys.com
    and several other websites. She states that the Defendant No. 1 also operates a

 

 

number of alternate websites that use the mark SAP as part of its domain name. He further states that the Defendants have cleverly hidden their identity by not disclosing the domain registrant’s name and veiled themselves through proxy registration services.

  1. Mr. Narula states that the Defendant No. 1 extensively advertises and promotes
    its unauthorized training programmes through various third party websites
    including creating web pages on Facebook and Linkedin and that the Defendants
    have also uploaded training videos on YouTube which bears the mark SAP and
    their website.
  2. Narula states that Defendants have infringed upon the exclusive rights of
    the Plaintiff by providing unauthorised training on their Copyright-protected
    software such as SAP PICO, SAP-HANA, SAP-SECURITY, SAP GRC, SAP MM etc.
    He further states that Defendants’ activities are illegal since the Plaintiff has not
    authorised the Defendants to use the aforesaid software or access other material to
    provide training or use their Trade mark SAP and/or their logo. She also states that
    no licence has been granted in favour of the Defendants to use any of the SAP’s
    Copyright protected software for providing training.
  3. Narula states that the Defendants have been using Plaintiff’s Trade mark
    SAP and the SAP logo, for promoting and offering its unauthorised training by
    setting up a number of websites. He states that such adoption and use is illegal and
    amounts to infringement of Plaintiff’s exclusive rights in the Trade mark SAP and
    SAP label under Section 29 of the Trade marks Act, 1999.
  4. The Plaintiff has filed its ex-parte evidence by way of affidavit of Mr. Dhirender
    Singh Rawat (PW1).
  5. The Plaintiff’s witness has proved the aforesaid averments as well as the copies
    of the Trade mark Registration Certificates in favour of the Plaintiff as
    PWl/ll(Colly). The PW1 has further proved the screenshots of the training
    videos on Youtube uploaded by the Defendants’ which bears the mark SAP and
    their website as Ex. PWl/12(Colly). PW1 has proved the screenshots of the websites
    operated by the Defendant No. 1 which use the mark SAP as part of their domain
    name as Ex. PW1/14. The Plaintiff’s witness also proved the extract of the who is
    search database for the Defendants’ websites as Ex. PW1/15.
  6. Having heard learned Counsel for Plaintiff as well as having perused the papers,
    this Court is of the view that due to extensive worldwide use over substantial period
    of time, the Plaintiff’s SAP mark and SAP logo have acquired reputation and goodwill
    in the marks globally as well as in India.

Further, as the Plaintiff’s evidence has gone unrebutted, said evidence is accepted
as true and correct. The Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani‘ AIR 2003 SC 2508 =  MANU/SC/0387/2003: 2003 (4) ALD 10 (SC): 2003 (4) ALLMR (SC) 1193: 2003 (51) ALR 699: 2003 (3) AWC 2511 (SC): JT 2003 (4) SC 450: 2003-4-LW 579: 2003 (4) MhLJ 579: 2003 (4) MhLJ 579 (SC): (2003) 3 ML] 26 (SC): 2003 MPLJ 439 (SC): (2003) 134 PLR 636: 2003 (2) RCR (Civil) 828: 2003 (4) SCALE 652: (2003) 7 SCC 350: (2003) 3 SCR 1149: 2003 (2) UJ 1210

  1. has held as under:-

33 .. .In the absence of denial of plaint averments the burden of proof on the Plaintiff is not very heavy. A prima facie proof the relevant facts constituting the cause of action would suffice and the Court would grant the Plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the Court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5. Yet the Trial Court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the Defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.

  1. From the evidence on record, it is apparent that without any explicit permission
    or licence to use the Plaintiff’s software, the Defendants have been blatantly
    installing/using pirated software to train the students amounting to unauthorised
    reproduction of the Plaintiff’s copyrighted software.
  2. Consequently, the allegation that the Trade mark, logo, label and software pertaining
    to SAP used by Defendants on their website amounts to infringement of Plaintiff’s
    Copyright, is accepted. The use of illegal trade activities by the Defendants is bound to
    cause incalculable losses, harm and injury to the Plaintiff and immense public harm.
  3. Accordingly, present suit is decreed in accordance with the paragraph 43(a), (b),
    (c) and (d) of the plaint along with the actual costs. Registry is directed to prepare a
    decree sheet accordingly.

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