{"id":176029,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/microsoft-corporation-vs-vijay-kaushik-anr-on-2-august-2011"},"modified":"2018-04-11T15:39:56","modified_gmt":"2018-04-11T10:09:56","slug":"microsoft-corporation-vs-vijay-kaushik-anr-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/microsoft-corporation-vs-vijay-kaushik-anr-on-2-august-2011","title":{"rendered":"Microsoft Corporation vs Vijay Kaushik & Anr. on 2 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Microsoft Corporation vs Vijay Kaushik & Anr. on 2 August, 2011<\/div>\n
Author: V. K. Jain<\/div>\n
         THE HIGH COURT OF DELHI AT NEW DELHI\n\n%           Judgment Pronounced on: 2nd August 2011\n\n+ CS(OS) 789\/2004\n\n\nMICROSOFT CORPORATION                 ..... Plaintiff\n             Through: Mr. Pravin Anand and Ms. Jaya\n             Negi, Advs.\n\n                    versus\n\n\nVIJAY KAUSHIK & ANR.                         ..... Defendant\n              Through: None.\n\nCORAM:-\nHON'BLE MR JUSTICE V.K. JAIN\n\n1.<\/pre>\n
 Whether Reporters of local papers may
\n   be allowed to see the judgment?                       No<\/p>\n
2. To be referred to the Reporter or not?                No<\/p>\n
3. Whether the judgment should be reported
\n   in Digest?                                           No<\/p>\n
V.K. JAIN, J (ORAL)<\/p>\n
1.          The plaintiff Microsoft Corporation is a company<\/p>\n
registered in USA and has setup a marketing subsidiary in<\/p>\n
India known as Microsoft Corporation India Private Limited.<\/p>\n
The plaintiff company provides a number of software<\/p>\n
products such as Microsoft Windows, Microsoft Office, etc.,<\/p>\n
which are being installed and used on large number of<\/p>\n
CS(OS)No.789\/2004                                  Page 1 of 19<\/span>
\n computers all over the world including India. It is claimed<\/p>\n
that the software developed and marketed by the plaintiff is<\/p>\n
a \u201ecomputer program\u201f within the meaning of Section 2(ffc) of<\/p>\n
the Copyright Act, 1957 and is also included in the<\/p>\n
definition of literary work as per Section 2(o) of the Act. It is<\/p>\n
alleged that the computer program of the plaintiff company<\/p>\n
have been created by its employees for the company and the<\/p>\n
copyright in those works belongs to the plaintiff company.<\/p>\n
2.          The plaintiff also claims to be the owner of the<\/p>\n
trademark Microsoft, which it adopted in the year 1970 and<\/p>\n
which it has since then been using continuously and<\/p>\n
extensively not only as a trademark but also as a key and<\/p>\n
essential component of its corporate name.                It is also<\/p>\n
claimed that the trademark Microsoft is a well-known mark<\/p>\n
and no other person is entitled to use the aforesaid mark in<\/p>\n
relation to any goods or business. The trademark Microsoft<\/p>\n
has also been registered in favour of the plaintiff company<\/p>\n
in India in Classes 9 and 16 vide registration No.430449B<\/p>\n
and 430450B, respectively.\n<\/p>\n
3.          In May 2004, on receiving information that the<\/p>\n
defendants          have   been   infringing   the   copyright     and<\/p>\n
CS(OS)No.789\/2004                                          Page 2 of 19<\/span>
\n trademarks of the plaintiff, by preloading software on the<\/p>\n
hard disk forming part of the computer being assembled<\/p>\n
and sold by them, the plaintiff engaged an Investigator to<\/p>\n
verify the complaints received by it.         The Investigator Mr.<\/p>\n
Manoj Kumar visited the premises of defendant No.2 M\/s<\/p>\n
Supreme Peripherals Pvt. Ltd. on 8th June 2004 and placed<\/p>\n
order for a computer system. On 9th June 2004, he was<\/p>\n
given delivery of the computer by defendant No.1 Mr. Anil<\/p>\n
Kumar, an employee of defendant No.2. That computer was<\/p>\n
loaded with unlicenced software of the plaintiff company.<\/p>\n
Mr. Manoj Kumar delivered that computer in sealed boxes<\/p>\n
to the office of M\/s Anand & Anand at New Delhi.                 The<\/p>\n
sealed boxes were got photographed by plaintiff\u201fs technical<\/p>\n
expert Mr. Gurjot Singh on the next day. He then opened<\/p>\n
the boxes, inspected the computer purchased from the<\/p>\n
defendants and took printouts of the directories of its hard<\/p>\n
disk.     The inspection revealed that the operating system<\/p>\n
Microsoft Windows XP Professional Version 2002 and<\/p>\n
software Microsoft Office 2000 and Microsoft Visual Basic<\/p>\n
6.0     had    been    loaded   in   the   computer   without    any<\/p>\n
authorization.        It was opined by the expert that the hard<\/p>\n
disk contained unlicenced and\/or pirated version of the<\/p>\n
CS(OS)No.789\/2004                                        Page 3 of 19<\/span>
\n plaintiff\u201fs    software.         The   software          program     was      not<\/p>\n
accompanied          by    the    original        Media,      i.e.   Compact<\/p>\n
Disc\/Floppy Disks, Certificate of Authenticity, End User<\/p>\n
Licence Agreement, User Instruction Manuals, Registration<\/p>\n
Cards, etc. which are normally accompanying the genuine<\/p>\n
software of the plaintiff company. The defendants are thus<\/p>\n
alleged to have infringed the trademark and copyright of the<\/p>\n
plaintiff company by selling the computer containing hard<\/p>\n
disk loaded with the aforesaid pirated computer program.<\/p>\n
\n\nThe    plaintiffs     have    sought       injunction       restraining       the\n\ndefendants          from   keeping,     selling,         offering    for     sale,\n\ndistributing          or     issuing        to      the        public         any\n\ncounterfeit\/unlicenced           version     of    its    software      or    any\n\ndeceptive version thereof.             The plaintiff has also sought\n\n<\/pre>\n
delivery up of all the counterfeit\/unlicenced copies of the<\/p>\n
plaintiff\u201fs software besides rendition of accounts.<\/p>\n
4.          The defendants were proceeded ex parte on March<\/p>\n
23, 2005.\n<\/p>\n
5.          The plaintiff has filed affidavits of Mr. Manoj<\/p>\n
Kumar, who was the Investigator appointed by it, Mr.<\/p>\n
Sanjeev Sharma, who is a Chartered Accountant, Mr.<\/p>\n
CS(OS)No.789\/2004                                                    Page 4 of 19<\/span>
\n Achuthan Shreekumar, Constituted Attorney of plaintiff<\/p>\n
company, Mr. Bhagwati Prasad, Advocate, who is working<\/p>\n
with Mr. Anand & Anand Advocates and its technical expert<\/p>\n
Mr Gurjot Singh.\n<\/p>\n
6.          In his affidavit by way of evidence Mr. Manoj<\/p>\n
Kumar has stated that on instructions from the plaintiff<\/p>\n
company,        he   visited   the   premises    of    M\/s.   Supreme<\/p>\n
Peripherals Pvt. Ltd. located at 205 Meghdoot Building, 94,<\/p>\n
Nehru Place, New Delhi on 8th June 2004 and met its<\/p>\n
employee Mr. Anil Kumar, who handed over the visiting card<\/p>\n
of Mr. Vishal Kaushik, Director of defendant No.2 company<\/p>\n
to him. He has further stated that he sought quotation for a<\/p>\n
Pentium        IV    desktop     computer       with     a    particular<\/p>\n
configuration.        Mr. Anil Kumar then handed over a<\/p>\n
quotation invoice to him on the letterhead of defendant No.2<\/p>\n
company, which is Annexure III to his affidavit. Mr. Kumar<\/p>\n
also said that he would be able to provide any software free<\/p>\n
of charge when he indicated that he would like to have<\/p>\n
Microsoft Windows XP, Microsoft Officer, Microsoft Visual<\/p>\n
Studio, Norton Antivirus, Games, etc.                 The witness also<\/p>\n
made advance payment of Rs.5,000\/- for which the receipt,<\/p>\n
CS(OS)No.789\/2004                                             Page 5 of 19<\/span>
\n which is Annexure III to the affidavit, was handed over to<\/p>\n
him and he was asked to take delivery of the machine on<\/p>\n
the next day.       He again visited the premised of defendant<\/p>\n
No.2 on 9th June 2004 and delivery of the machine was<\/p>\n
given to him after loading the software.     On checking the<\/p>\n
machine he found Microsoft Windows XP Professional,<\/p>\n
Microsoft Office and Microsoft Visual Basic, installed in the<\/p>\n
machine along with other software.         The computer was<\/p>\n
thereafter packed and sealed in the boxes in his presence<\/p>\n
and a receipt which is Annexure IV to the affidavit was given<\/p>\n
to him after taking the balance amount from him. He took<\/p>\n
delivery of the computer at about 5:30 PM and placed his<\/p>\n
name seal on the compute boxes, indicating date and time<\/p>\n
as well. He then delivered the machine in the office of M\/s.<\/p>\n
Anand & Anand, B-41, Nizamuddin East, New Delhi at<\/p>\n
about 6:00 PM. He has further stated the no amount was<\/p>\n
charged from him for the software installed in the computer<\/p>\n
and no literature pertaining to licences or any original<\/p>\n
CDs\/Floppy Disks or operating CD for the software was<\/p>\n
given to him. In his affidavit by way of evidence Mr. Gurjot<\/p>\n
Singh, who is a qualified Microsoft Certified Systems<\/p>\n
Engineer and a Microsoft Certified Professional, has stated<\/p>\n
CS(OS)No.789\/2004                                    Page 6 of 19<\/span>
\n that    on     10th   June   2004,   he   was     asked    by      the<\/p>\n
representatives of the plaintiff company to examine the<\/p>\n
contents of a computer purchased from defendant No.2<\/p>\n
company, which was kept at the office of the plaintiff\u201fs<\/p>\n
representatives at B-41, Nizamuddin East, New Delhi. He<\/p>\n
was handed over sealed boxes which M\/s. Anand & Anand<\/p>\n
received on 9th June 2004. The boxes handed over to him<\/p>\n
were in a sealed condition. He took digital pictures of all the<\/p>\n
three boxes and computer printout of those pictures is<\/p>\n
Annexure A to his affidavit. He then opened the boxes and<\/p>\n
took out the monitor, CPU, keyboard, etc. After switching<\/p>\n
on the computer, he took out a printout of the contents of<\/p>\n
the hard disk, which revealed Microsoft Windows XP<\/p>\n
Professional Version 2002, Microsoft Office 2000 and<\/p>\n
Microsoft Visual Basic 6.0 loaded into it. He took coloured<\/p>\n
printout of the screenshots of all the printouts as well as<\/p>\n
printout of the directory which are Annexure B to his<\/p>\n
affidavit. The printout indicated the time and date when the<\/p>\n
software were loaded in the machines.           On examining the<\/p>\n
software contained in the hard disk, he concluded that they<\/p>\n
were pirated softwares for the following reasons:-<\/p>\n
CS(OS)No.789\/2004                                         Page 7 of 19<\/span>\n<\/p>\n
      (a) Unlike in the case of original software, the computer<\/p>\n
        loaded      with   the    aforesaid      software     was       not<\/p>\n
        accompanied by Media (CDs\/floppies), Instructional<\/p>\n
        Manuals, End User Licence Agreement, Certificates of<\/p>\n
        Authenticity and Registration Cards.<\/p>\n<\/blockquote>\n
     (b) In the case of original software, each of the software<\/p>\n
        accompanying        the   sale    of     a   computer       would<\/p>\n
        necessarily be packaged and sold along with Media<\/p>\n
        (CDs\/floppies),     Instructional      Manuals,       End     User<\/p>\n
        Licence Agreements, Certificates of Authenticity and<\/p>\n
        Registration Cards.\n<\/p><\/blockquote>\n
     (c) The product keys of the software loaded in the<\/p>\n
        computer inspected by me were “installation break<\/p>\n
        codes” as an original product key of a plaintiff\u201fs<\/p>\n
        software does not contain nos. such as “00000” or<\/p>\n
        “1111111111”. “Break codes” are product keys codes<\/p>\n
        which can bypass the requirement of providing<\/p>\n
        authentic       installation     codes       during     software<\/p>\n
        installation.\n<\/p><\/blockquote>\n
7.          Mr. Achuthan Sreekumar, Constituted Attorney of<\/p>\n
the plaintiff company has supported on oath the case setup<\/p>\n
CS(OS)No.789\/2004                                              Page 8 of 19<\/span>
\n in the plaint and has deposed about the trademark and<\/p>\n
copyright of the plaintiff company.\n<\/p>\n
8.          In his affidavit Mr. Bhagwati Prasad, Advocate has<\/p>\n
stated that he has been working with Anand & Anand<\/p>\n
Advocates since 1983 and on 9th June 2004 one box<\/p>\n
containing monitor, one box containing CPU and two boxes<\/p>\n
containing the accessories were delivered in their office by<\/p>\n
the investigator Mr. Manoj Kumar in a sealed condition. He<\/p>\n
further stated that on 10th June 2004 contents of the<\/p>\n
computer system purchased by the investigator from the<\/p>\n
defendants were examined by Mr. Gurjot Singh in their<\/p>\n
office. He further stated that computer system examined by<\/p>\n
Mr. Gurjot Singh was the same which was purchased by Mr.<\/p>\n
Manoj Kumar from defendants on 9 th June 2004.<\/p>\n
9.          Ex. P-8 is the Certificate of Registration of the word<\/p>\n
mark Microsoft in the name of Microsoft Corporation in<\/p>\n
respect of computer programmes prerecorded on tapes,<\/p>\n
disks, disketee cartridges, cassettes, and within ready only<\/p>\n
memories, computer programs and related user manuals<\/p>\n
and instructional guides sold as a unit, whereas Ex.P-9 is<\/p>\n
the Copy of registration in Class 16 in respect of computer<\/p>\n
CS(OS)No.789\/2004                                       Page 9 of 19<\/span>
\n documents           relating   to     computer   hardware,       software<\/p>\n
manuals,        computer           documentation,      reference,     user,<\/p>\n
instructional and general utilities manuals and data sheets<\/p>\n
for    computer        hardware       and   software     manufacturers,<\/p>\n
producers and users. It would thus be seen that plaintiff is<\/p>\n
the proprietor of the trademark Microsoft in India in respect<\/p>\n
of the computer programme recorded on tapes, disks, CDs,<\/p>\n
etc.   as     also     all   the    accompanying       users,   manuals,<\/p>\n
instruction guide, etc.<\/p>\n
10.         Ex.P-4 is the Certificate of copyright registration in<\/p>\n
respect of Microsoft Office 2000 Professional. Ex.P-6 is the<\/p>\n
copyright registration in respect of Microsoft Visual Basic<\/p>\n
Version 6.0, Ex.P-9 is the Certificate of Registration in<\/p>\n
respect of the work Microsoft Visual Basic 6.0 and Ex.P-7 is<\/p>\n
the Certificate of Registration of the work Microsoft Visual<\/p>\n
C++ 6.0 Enterprise Edition.                 Ex. P-4 to P-6 are US<\/p>\n
registrations.\n<\/p>\n
11.         Section 40 of the Copyright Act, 1957, to the extent<\/p>\n
it is relevant, provides that the Central Government may, by<\/p>\n
order published in the Official Gazette, direct that all or any<\/p>\n
provisions of the Act shall apply to work first published in<\/p>\n
CS(OS)No.789\/2004                                               Page 10 of 19<\/span>
\n any territory outside India to which the order relates in like<\/p>\n
manner as if they were first published within India.<\/p>\n
12.         Para 3 of International Copyright Order 1999<\/p>\n
issued vide S.O. 228(E) dated 24th March, 1999 published in<\/p>\n
the Gazette of India, Extra Part II would show that vide<\/p>\n
aforesaid order, all the provisions of the Copyright Act, 1957<\/p>\n
except those in Chapter VIII and those other provisions<\/p>\n
which apply exclusively to Indian works have been extended<\/p>\n
to any work first made or published in a country mentioned<\/p>\n
in Part I, II, III, IV or VI of the Schedule in like manner as if<\/p>\n
it was first published in India. USA is included as one of<\/p>\n
the countries mentioned in Part I of the Schedule and its<\/p>\n
name appears at number 131 of the list. Paragraph 2 of the<\/p>\n
aforesaid order provides that “Berne Convention Country”<\/p>\n
means a country which is a member of the Berne Copyright<\/p>\n
Union and includes a country mentioned either in Part I or<\/p>\n
in Part II of the Schedule. Therefore, USA is a member of<\/p>\n
the Berne Copyright Union and all the provisions of the<\/p>\n
Copyright Act, 1957 except those contained in Chapter VIII,<\/p>\n
and those other provisions which apply exclusively to Indian<\/p>\n
works are applicable to the copyrights in respect of any<\/p>\n
CS(OS)No.789\/2004                                      Page 11 of 19<\/span>
\n work which has been published first in USA.<\/p>\n
13.         Clause (d) of Section 3 of the International<\/p>\n
Copyright Order, 1999, to the extent it is relevant, provides<\/p>\n
that the aforesaid provisions shall apply to any work first<\/p>\n
made or published by a body corporate incorporated under<\/p>\n
any law of a country mentioned in Part I, II, III, IV or Part VI<\/p>\n
of the Schedule, in like manner, as if it was incorporated<\/p>\n
under a law in force in India.\n<\/p>\n
14.         The provisions of para 3 however have been made<\/p>\n
applicable subject to the provisions contained in para 4 to 6<\/p>\n
of the order.       Paragraph 4 of the International Copyright<\/p>\n
Order, 1999 does not apply in this case. Section 32 of the<\/p>\n
Copyright Act, 1957 to which paras 5 and 6 of the aforesaid<\/p>\n
order pertains relates to licences in public translations and<\/p>\n
therefore, does not apply to facts of the case before this<\/p>\n
Court.\n<\/p>\n
15.         Thus, in view of the provisions contained in<\/p>\n
Section 40 of the Copyright Act read with International<\/p>\n
Copyright Order, 1999, the provisions of Chapter XI of the<\/p>\n
Copyright Act including Section 51 which deals with<\/p>\n
infringement of copyright would apply to the copyright<\/p>\n
CS(OS)No.789\/2004                                     Page 12 of 19<\/span>
\n registrations obtained by the plaintiffs in respect of the<\/p>\n
software found to be installed in the computers of defendant<\/p>\n
no. 2.\n<\/p>\n
16.         Section 51 of the Copyright Act, to the extent<\/p>\n
relevant, provides that copyright in a work shall be deemed<\/p>\n
to be infringed when any person without a licence granted<\/p>\n
by the owner of the copyright or the Registrar of Copyrights<\/p>\n
under the Act or in contravention of the conditions of a<\/p>\n
licence so granted or of any condition imposed by a<\/p>\n
competent authority under the Act does anything, the<\/p>\n
exclusive right to do which is by the Act is conferred upon<\/p>\n
the owner of the copyright.\n<\/p>\n
17.         Section 14 of the Copyright Act, to the extent<\/p>\n
relevant, provides that copyright means the exclusive rights<\/p>\n
subject to the provisions of the Act, to do or authorize the<\/p>\n
doing of specified acts in respect of a work or any<\/p>\n
substantial part thereof, which in the case of a computer<\/p>\n
programme would include to reproduce the work in any<\/p>\n
material form including the storing of it in any medium by<\/p>\n
electronic means.\n<\/p>\n
18.         The deposition of Mr. Manoj Kumar, who was the<\/p>\n
CS(OS)No.789\/2004                                  Page 13 of 19<\/span>
\n investigator appointed by the plaintiff company shows that<\/p>\n
he had purchased a computer system from defendant No.2<\/p>\n
on 8th\/9th June 2004, had got it sealed in boxes and later<\/p>\n
delivered those boxes in the office of M\/s. Anand & Anand<\/p>\n
at B-41, Nizamuddin East, New Delhi. His deposition also<\/p>\n
shows      that     he   had   informed     the   representatives      of<\/p>\n
defendant No.2 that he would like to have Microsoft Office<\/p>\n
XP,    Microsoft Office,       Microsoft    Visual Studio,       Norton<\/p>\n
Antivirus, Games amongst other softwares to be loaded in<\/p>\n
the computer and on checking the machines, he found<\/p>\n
Microsoft Windows XP Professional, Microsoft Office and<\/p>\n
Microsoft      Visual    Basic,   etc.    installed   therein.      The<\/p>\n
deposition of Sh. Bhagwati Prassad, Advocate shows that<\/p>\n
the sealed boxes which Mr. Manoj Kumar had deposited in<\/p>\n
their office on 9th June 2004 were inspected by Mr. Gurjot<\/p>\n
Singh on 10th June 2004. The affidavit of Mr. Gurjot Singh<\/p>\n
shows that Microsoft Windows XP Professional Version<\/p>\n
2002, Microsoft Office 2000 and Microsoft Visual Basic 6.0<\/p>\n
were found installed in the computers which Mr. Manoj<\/p>\n
Kumar had purchased from defendant No.2 and which he<\/p>\n
had delivered at the office of M\/s. Anand & Anand<\/p>\n
Advocates on 9th June 2004. Mr. Gurjot Singh has, in his<\/p>\n
CS(OS)No.789\/2004                                           Page 14 of 19<\/span>
\n affidavit, given grounds on the basis of which he came to<\/p>\n
the conclusion that the software found loaded in the<\/p>\n
computer inspected by him were pirated softwares.                 The<\/p>\n
deposition of Mr. Gurjot Singh as well Mr. Manoj Kumar<\/p>\n
also shows that the computer sold by defendant No.2 to Mr.<\/p>\n
Manoj Kumar was not accompanied by any media such as<\/p>\n
CDs\/floppies, Instructional Manuals, End User Licence<\/p>\n
Agreements, Certificates of Authenticity and Registration<\/p>\n
Cards.      Had the software loaded with the computer been<\/p>\n
genuine software purchased from plaintiff company, not<\/p>\n
only the CD\/floppy, but the instructional manual and<\/p>\n
certificate of authenticity, etc. would have been supplied by<\/p>\n
defendant No.2 to Mr. Manoj Kumar along with the<\/p>\n
computer.       In particular the affidavit of Mr. Gurjot Singh<\/p>\n
shows that the product keys of the software loaded in the<\/p>\n
computer inspected by him were “installation break codes”<\/p>\n
since the original product key of plaintiff\u201fs genuine software<\/p>\n
does not contain numbers such as “0000” or “1111111111”.<\/p>\n
According to him break codes are products key codes which<\/p>\n
can     bypass      the   requirement   of   providing   authentic<\/p>\n
installation codes during software installation.         In view of<\/p>\n
the inspection report of Mr. Gurjot Singh coupled with the<\/p>\n
CS(OS)No.789\/2004                                         Page 15 of 19<\/span>
\n deposition of Mr. Manoj Kumar, I have no hesitation in<\/p>\n
holding that defendant No.2 had sold computer system<\/p>\n
having a hard disk loaded with pirated software Microsoft<\/p>\n
Windows XP Professional Version 2002, Microsoft Office<\/p>\n
2000 and Microsoft Visual Basic 6.0. By selling computer<\/p>\n
system which contained a hard disk loaded with the pirated<\/p>\n
software in which copyright is held by the plaintiff company,<\/p>\n
defendant No.2 infringed the copyright of the plaintiff in the<\/p>\n
aforesaid computer program. The contention of the learned<\/p>\n
counsel for the plaintiff is that use of the pirated software<\/p>\n
also involves use of the trademark Microsoft of the plaintiff<\/p>\n
company without any licence from the plaintiff company<\/p>\n
and, therefore, defendant no.2 has also infringed the<\/p>\n
registered trademark of the plaintiff company which is<\/p>\n
otherwise a well-known mark in India.\n<\/p>\n
19.         The learned counsel for the plaintiff states that he<\/p>\n
is confining his prayer to grant of perpetual injunction and<\/p>\n
damages. In Autodesk, Inc. vs. Mr. Prakash Deshmukh,<\/p>\n
Suit No. 1755\/2003 decided on 9th March 2011, in which<\/p>\n
Microsoft Corporation was plaintiff No.2 before this Court,<\/p>\n
this Court inter alia observed as under:-\n<\/p>\n
CS(OS)No.789\/2004                                     Page 16 of 19<\/span>\n<\/p>\n
             It is difficult to dispute that the use of
\n            pirated       softwares     of    reputed
\n            companies such as Microsoft and
\n            AutoCAD is widely prevalent in our
\n            country and in fact, use of pirated
\n            software may be far exceeding the use
\n            of licenced software. The companies
\n            which invest heavily in development
\n            of such highly useful software, will be
\n            discouraged from making further
\n            investments        in   designing     new
\n            softwares and improving the existing
\n            ones, if they are deprived of licence
\n            fee which they get on sale of licences,
\n            since it is only from that money that
\n            they can develop new softwares by
\n            making substantial investments in
\n            research and development.\n<\/p><\/blockquote>\n
<\/blockquote>\n
20.         Defendant No.2 has been found using the pirated<\/p>\n
software of the plaintiff company for making gains in its<\/p>\n
business.       There is a strong likelihood of defendant No.2<\/p>\n
persisting with sale of computer system having hard disk<\/p>\n
loaded with pirated software unless adequate punitive<\/p>\n
damages are awarded against it.            In fact use of pirated<\/p>\n
software by a commercial entity such as defendant No.2<\/p>\n
needs to be dealt with more strictly then use of software by<\/p>\n
an individual for his personal purpose. Defendant No. 2 has<\/p>\n
not come forward to contest the suit. Had it contested the<\/p>\n
suit, it would have been possible for the Court to scrutinize<\/p>\n
its account books to ascertain the profit it has been making<\/p>\n
CS(OS)No.789\/2004                                        Page 17 of 19<\/span>
\n from sale of computers loaded with pirated software.                      The<\/p>\n
defendant No. 2 is a company, carrying business in Nehru<\/p>\n
Place, a prime locality, which is the main market for sale of<\/p>\n
such products. It can, therefore, be safely assumed that it<\/p>\n
must be making handsome profits by selling computers<\/p>\n
loaded with pirated software and that is why it has taken<\/p>\n
the risk of carrying business of this nature and has chose<\/p>\n
not to come forward to contest the suit. The punitive<\/p>\n
damages to be awarded against defendant No. 2, therefore,<\/p>\n
need to be adequate, exemplary and deterrent enough.<\/p>\n
21.         For the reasons given in the preceding paragraphs,<\/p>\n
a decree with costs is passed against defendant No.2<\/p>\n
restraining         it   from   selling,   offering for   sale,     storing,<\/p>\n
distributing of any computer systems or any other computer<\/p>\n
hardware loaded with the software Microsoft Windows XP<\/p>\n
Professional Version 2002, Microsoft Office 2000 and<\/p>\n
Microsoft Visual Basic 6.0 or any other software in which<\/p>\n
the plaintiff company hold copyright and\/or trademark<\/p>\n
registration, except under a licence from the plaintiff<\/p>\n
company. Defendant No.2 is also directed to pay Rs.5 Lacs<\/p>\n
as punitive damages to the plaintiff company.                 As far as<\/p>\n
CS(OS)No.789\/2004                                                 Page 18 of 19<\/span>
\n defendant No.1 is concerned, he being a Director of the<\/p>\n
plaintiff company, no decree needs to be passed against<\/p>\n
him. The suit against defendant No.1 is dismissed without<\/p>\n
any order as to costs.\n<\/p>\n<\/p>\n
                                          (V.K. JAIN)
\n                                            JUDGE
\nAUGUST 02, 2011
\nAg<\/p>\n
CS(OS)No.789\/2004                               Page 19 of 19<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Microsoft Corporation vs Vijay Kaushik & Anr. on 2 August, 2011 Author: V. K. Jain THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Pronounced on: 2nd August 2011 + CS(OS) 789\/2004 MICROSOFT CORPORATION ….. Plaintiff Through: Mr. Pravin Anand and Ms. Jaya Negi, Advs. versus VIJAY KAUSHIK & ANR. ….. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-176029","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMicrosoft Corporation vs Vijay Kaushik & Anr. on 2 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/microsoft-corporation-vs-vijay-kaushik-anr-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Microsoft Corporation vs Vijay Kaushik & Anr. on 2 August, 2011 - 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