MICROSOFT CORPORATION Vs. VIJAY KAUSHIK

JUDGEMENT

(1.) The Plaintiff Microsoft Corporation is a company registered in USA and has setup a marketing subsidiary in India known as Microsoft Corporation India Private Limited. The Plaintiff company provides a number of software products such as Microsoft Windows, Microsoft Office, etc., which are being installed and used on large number of computers all over the world including India. It is claimed that the software developed and marketed by the Plaintiff is a 'computer program' within the meaning of Section 2 (ffc) of the Copyright Act, 1957 and is also included in the definition of literary work as per Section 2(o) of the Act. It is alleged that the computer program of the Plaintiff company have been created by its employees for the company and the copyright in those works belongs to the Plaintiff company.

(2.) The Plaintiff also claims to be the owner of the trademark Microsoft, which it adopted in the year 1970 and which it has since then been using continuously and extensively not only as a trademark but also as a key and essential component of its corporate name. It is also claimed that the trademark Microsoft is a well-known mark and No. other person is entitled to use the aforesaid mark in relation to any goods or business. The trademark Microsoft has also been registered in favour of the Plaintiff company in India in Classes 9 and 16 vide registration No. 430449B and 430450B, respectively.

(3.) In May 2004, on receiving information that the Defendants have been infringing the copyright and trademarks of the Plaintiff, by preloading software on the hard disk forming part of the computer being assembled and sold by them, the Plaintiff engaged an Investigator to verify the complaints received by it. The Investigator Mr. Manoj Kumar visited the premises of Defendant No. 2 M/s Supreme Peripherals Pvt. Ltd. on 8th June 2004 and placed order for a computer system. On 9th June 2004, he was given delivery of the computer by Defendant No. 1 Mr. Anil Kumar, an employee of Defendant No. 2. That computer was loaded with unlicenced software of the Plaintiff company. Mr. Manoj Kumar delivered that computer in sealed boxes to the office of M/s Anand & Anand at New Delhi. The sealed boxes were got photographed by Plaintiff's technical expert Mr. Gurjot Singh on the next day. He then opened the boxes, inspected the computer purchased from the Defendants and took printouts of the directories of its hard disk. The inspection revealed that the operating system Microsoft Windows XP Professional Version 2002 and software Microsoft Office 2000 and Microsoft Visual Basic 6.0 had been loaded in the computer without any authorization. It was opined by the expert that the hard disk contained unlicenced and/or pirated version of the Plaintiff's software. The software program was not accompanied by the original Media, i.e. Compact Disc/Floppy Disks, Certificate of Authenticity, End User Licence Agreement, User Instruction Manuals, Registration Cards, etc. which are normally accompanying the genuine software of the Plaintiff company. The Defendants are thus alleged to have infringed the trademark and copyright of the Plaintiff company by selling the computer containing hard disk loaded with the aforesaid pirated computer program. The Plaintiffs have sought injunction restraining the Defendants from keeping, selling, offering for sale, distributing or issuing to the public any counterfeit/unlicenced version of its software or any deceptive version thereof. The Plaintiff has also sought delivery up of all the counterfeit/unlicenced copies of the Plaintiff's software besides rendition of accounts.