MICROSOFT CORPORATION Vs. YOGESH PAPAT

JUDGEMENT

(1.) Plaintiff is the registered proprietor of the trade mark 'MICROSOFT'. The mark is registered in Classes 9 and 16 vide registration No. 430449-B and 430450-B. Plaintiff claims to have created various kinds of software in which plaintiff claims a proprietary right. When the software is sold, purchaser has licence agreement setting out the terms of permissible user of the software which is contained in a floppy. CD/floppies are handed over. Term of the licence agreement permits the use of the CDs/floppies, as per conditions.

(2.) It is stated in the plaint that the defendants, without a lice: ice 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 of the plaintiff's software, in any manner, amounting to infringement of the plaintiff's copyright in the said computer programs and related manuals; (b) An order for permanent injunction restraining the defendants, their directors, officers, servants and agents and all others acting for and on their behalf, from unauthorisedly selling, offering for sale, distributing the plaintiff's software and/or any other product to which the plaintiffs' trademarks, or any deceptive variants thereof have been applied without the licence of the plaintiffs amounting to infringement of plaintiff's registered trademark; (c) An order for permanent injunction restraining the defendants, their directors, officers, servants and agents and all others acting for and on their behalf, from unauthorisedly selling, offering for sale, distributing the plaintiff's software and/or any other product to which the plaintiff's trademarks, or any deceptive variants thereof has been applied without the licence of the plaintiffs, amounting to passing off of the counterfeit/unlicensed software and products as genuine products of the plaintiffs; (d) An order for deliveryup to the plaintiffs, of all the counterfeit/ unlicensed copies of the plaintiff's software, and/or articles/ software to which have been applied the plaintiff's trademarks, or any other mark which may be identical with or deceptively similar to the plaintiffs trademarks without licence of the plaintiffs, the duplicating equipment used in 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, packing 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 sum of the amount so ascertained."

(3.) As per the plaint, defendant No. 1 was found to be carrying on operations on behalf of defendant No. 2.