G.S. Sistani, J:
I.A. No. /2012 (TO BE NUMBERED)
This is an application seeking exemption from filing original / certified and clearer copies of the documents. Let the original documents and certified copies be filed and illegible copies of the documents be replaced before the next date of hearing.
Application stands disposed of.
CS(OS) 1725/2012 and I.A. 10968/2012 (STAY)
1. This is suit for permanent injunction, restraining infringement of copyright, infringement of trademark, passing off, rendition of accounts, damages, delivery up etc.
2. Counsel for the plaintiff submits that plaintiff is an affiliated company of Sony Computer Entertainment, Inc. and it carries on business and handles the research and development, production and sales of both hardware and software for the PlayStation line of handheld and home consoles which include PlayStation game console, the PlayStation2 computer entertainment system, the Play Station Potable handheld entertainment system, PlayStation3 system and PlayStation Vita handheld entertainment system. The plaintiff has also introduced various hardwares and softwares to be used on the PlayStations and other home entertainment systems. The plaintiff had also launched amongst others Uncharted : Drake's Fortune, Uncharted 2 : Among Thieves, Uncharted 3 : Drake's Deception God of War, Resistance, Killzone, Infamous, Gran Turismo, amongst other games as well.
3. Counsel for the plaintiff submits that defendants are selling the home entertainment systems of the plaintiff by making modifications and up-loading pirated soft-wares in the form of games to the computer, by which the copyright of the plaintiff has been infringed. It is also submitted that plaintiff is the registered proprietor of various trademarks, details of which have been extracted in the plaint. Counsel has also explained in the plaint, how the defendants systematically un-lock the system and modify the original equipments of the plaintiff and make it ready for use with the pirated soft-ware. It is also submitted that the defendants are using a soft-ware known as `Jailbreak' with a view to breaking the encrypted code on the original machines and making them ready to be used for up-loading all pirated games which are also being provided by the defendants at an extra cost. This act of overriding the encrypted code by introducing the Jailbreak software amounts to circumvention of Technological Protection measures which in turn violates the copyright of the plaintiff in software of its operating system. Counsel for the plaintiff also submits that circumvention of technological protection measures has also been recognized by Copyright Amendment Bill which was passed by the Parliament on 17th May, 2012 and is currently awaiting notification. The effect of this illegal act of the defendant is primarily two folds:
firstly the original machines of the plaintiff are being modified without their consent; and secondly the defendants are infringing the copyright of the plaintiff by introducing pirated games which are without the licence and consent of the plaintiff. Counsel for the plaintiff has also relied on the discrete investigation, which was carried out by the investigators of the plaintiff, who purchased the modified console from one of the defendants. The act of the defendants is in clear violation of the Trade-mark Act and Copy Right Act. In these circumstances, the plaintiff has prayed for an ad interim injunction against defendants.
4. Issue summons in the suit and notice in the application to defendants, returnable on 12.09.2012.
5. I have heard counsel for the plaintiff and perused the plaint, application and the documents. I am satisfied that this is a fit case for grant of ex parte injunction. Till the next date of hearing defendants, their directors, officers, servants and agents are restrained from using, copying, selling, offering for sale, distributing, hard-disk loading, modifying the processing unit of the consoles, circumventing the technological protection measures issuing to the public, counterfeit/ unlicensed versions of software program/ games of the plaintiff, in any manner, amounting to infringement of plaintiff's copyright. The defendants, their directors, officers, servants and agents and all others, are further restrained from altering the condition of the PlayStation3 consoles in such a manner, amounting to infringement of the plaintiff's registered trademarks' PlayStation and the logo.
6. Plaintiff will comply with the provisions of Order 39 Rule 3 CPC within three weeks days. DASTI.
7. By this application, applicant, plaintiff prays for appointment of the Local Commissioners with direction to visit the premises of the defendants at (i) Samurai Corner, 146, Gaffar Market, Karol Bagh, New Delhi-110 005, (ii) Kalra Electronics, 125, Gaffar Market, Karol Bagh, New Delhi-110 005; and (iii) Kid?s Corner, Shop No. 43, RNA Shopping Arcade, Swami Samarth Nagar, Lokhandwallah Complex, Andheri (West), Mumbai-400 058, in view of the fact that plaintiff apprehends that once the defendants are served with order of injunction, the defendants will remove the infringing goods from their premises in an attempt to destroy and remove the evidence which will frustrate the very purpose of the present proceedings.
8. I find force in the submission of counsel for the plaintiff.
9. Accordingly, Mr.Siddharth Barwah, Adv. (Cell No. 9899040660) is appointed as a Local Commissioner, who is directed to visit the premises of defendant at Samurai Corner, 146, Gaffar Market, Karol Bagh, New Delhi-110 005; Mr.Yogesh Bhatia, Adv. (Cell No. 9650479991) is appointed as a Local Commissioner, who is directed to visit the premises of defendant at Kalra Electronics, 125, Gaffar Market, Karol Bagh, New Delhi-110 005; and Mr.Prashant Mehta, Adv. (Cell No. 9999590003) is appointed as a Local Commissioner, who is directed to visit the premises of defendant at Kid's Corner, Shop No. 43, RNA Shopping Arcade, Swami Samarth Nagar, Lokhandwallah Complex, Andheri (West), Mumbai-400 058. Local Commissioners are directed to inspect the Hard Disks of the computer systems, compact discs (CDs) and/ or other storage media, with the help of Technical Experts, and representative of the plaintiffs and also make an inventory of the same, and to determine if they contain pirated/ counterfeit / unlicensed versions of the plaintiffs? software programs/games or any Jailbreak software used to circumvent the technology protection measures in the PlayStation3, and if so, then seize and seal the computer hard dis
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ks, compact discs (CDs), and/ or other storage media as found to contain such unlicensed/ pirated / counterfeit version of any of the plaintiffs? software programs, and hand over the same on superdari to the defendants. The local commissioners will inspect the books of accounts including ledgers, cash books, purchase and sale records. The fee of the Local Commissioners who will visit the premises of the defendant at Delhi is fixed at Rs. 60,000/- and the fee of the Local Commissioners who will visit the premises of the defendant at Mumbai is fixed at Rs. 75,000/-. Local commissioners will be entitled to take photographs and are also entitled to seek police assistance. Local Commissioners shall file his report before the next date of hearing.