MICROSOFT CORPORATION Vs. KRISHAN KUMAR GUPTA

JUDGEMENT

(1.) The plaintiff files the present suit seeking an order of permanent injunction restraining the defendant from infringing its trademark and also seeks an order for rendition of accounts, delivery up of goods and for damages.

(2.) The plaintiff is a corporation based in the United States, having its Indian office in New Delhi. It has, over the years established a high reputation in the business of development of software programmes and also select computer hardware including mouse, keyboard, joystick, etc. The mouse is a small hand held device, which is moved over a flat surface to produce a corresponding movement of a cursor or arrow on a computer monitor. The plaintiff manufactures mice under the label "Microsoft OEM Serial Mouse 2.OA" and is marketed with authentic microsoft software to install drivers. The plaintiff has obtained trademark registration in class 16 in 1984 for the mark 'MICROSOFT', bearing no: 430450. The plaintiff also has submitted figures relating to its sales and publicity. It has further averred as to the unique packing and contents of its boxes, in which its mice are marketed.

(3.) The avers that in January, 1998 it was informed that the defendants were manufacturing and selling counterfeit mice bearing the mark 'MICROSOFT'. One such mouse was purchased and sent for examination, upon which it was found that it was counterfeit. The technical consultant, Mr. Gurjot Singh gave a detailed report along with photographs. The report pointed out the following distinctions. Firstly, the absence of a Microsoft OEM Agreement, second, the absence of a Certificate of Authenticity accompanying the counterfeit product. Moreover, the absence of shrink wrap packing and hologram in the counterfeit piece and district micro switches and similar hardware components.