Full Judgment Text
#F-21
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1742/2009
SUPER CASSETTES INDUSTRIES ..... Plaintiff
Through Ms Geetanjali Visvanathan and
Ms. Ayushi Kiran, Advocates
versus
M/S. RACHANA TELEVISION PVT. LTD. ..... Defendant
Through None
th
% Date of Decision: 13 May, 2013
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN , J: (Oral)
1. Present suit has been filed for permanent injunction for infringement
of copyright, damages, delivery up etc. The prayer clause in the plaint is
reproduced hereinbelow:-
“36. (i) An order of permanent injunction restraining the
Defendant, its officers, servants, agents and representatives and
all others acting for and on their behalf from recording,
distributing, broadcasting or otherwise publishing or in any
other way exploiting any films, sound recordings, music, lyrics in
the Plaintiff’s repertoire or doing any other act that would lead
to infringement of the Plaintiff’s copyright;
CS(OS) 1742/2009 Page 1 of 6
(ii) An order for rendition of accounts of profits directly or
indirectly earned by the Defendant from the infringing activities
and conduct, and a decree for the amount so found due to be
passed in favour of the Plaintiff;
(iii) An order of delivery up to the Plaintiff or its authorized
representative by the Defendant of all infringing tapes, copies
and negatives, etc bearing the copyrighted materials of the
Plaintiff;
(iv) An order requiring the Defendant to pay to the Plaintiff
damages as stated hereinabove.
(v) An order awarding the costs of the present suit to the
Plaintiff.”
2. Learned counsel for the plaintiff fairly states that she does not wish to
press prayers (ii) and (iii) of the plaint. The aforesaid statement is accepted
by this Court and plaintiff is held bound by the same.
3. It is the plaintiff's case that it is one of the most reputed music
companies in the country and is the owner of a large repertoire of
copyrighted works, including audio visual works, sound recordings and
underlying musical and literary works.
4. It is stated that one of the important aspects of the plaintiff’s business
is to give licences to various organizations such as Broadcasting
Organizations, Television Channels, FM Radio Stations etc. for the use of its
copyrighted works. It is further stated that some of the television news
channels that have entered into licence agreements with the plaintiff include,
Aaj Tak, Headlines Today, Tez, CNN IBN, IBN 7, CNBC-TV-18, NDTV
INDIA, NDTV 24 x 7, Times Now etc.
CS(OS) 1742/2009 Page 2 of 6
5. The defendant, M/s. Rachana Television Private Limited, a
Hyderabad based company, owns and runs a Telugu news channel by the
name of “NTV”. It is stated by learned counsel for the plaintiff that like any
other channel the defendant makes extensive use of Hindi songs and film
extracts.
6. In the plaint it is stated that in April, 2009 in the course of random
monitoring of the defendant’s broadcasts, the plaintiff company came to
know about unauthorised and unlicensed use of its copyrighted works on the
defendant’s channel.
7. It is the plaintiff’s case that on coming to know of the said
infringement, it initially made efforts to resolve the matter amicably with the
defendant. However, it is stated that the negotiations ended in a failure as
defendant neither obtained a licence nor stopped broadcast of plaintiff’s
content on its channel.
th
8. Thereafter the plaintiff sent a legal notice dated 15 July, 2009
requesting the defendant to cease and desist from making such infringing
broadcast and to pay the requisite licence fee.
th
9. It is stated that the the defendant in its reply dated 30 July, 2009
denied all the plaintiff’s averments including the factum of negotiation and
broadcasts.
10. As despite a rejoinder, defendant’s infringing acts still continued, the
plaintiff filed the present suit.
th
11. Upon the present suit being filed, this Court on 15 September, 2009
passed an ad interim ex parte injunction order restraining the defendant from
either engaging in themselves, or from communicating to the public or
broadcasting or otherwise publishing or in any manner exploiting any films
CS(OS) 1742/2009 Page 3 of 6
or sound recordings or literary works (lyrics) or Musical works (musical
composition) or other works or a part thereof that is owned by the Plaintiff,
or doing any other act that would lead to infringement of the plaintiff's
copyrights.
st
12. On 21 January, 2011, since none appeared for the defendant, it was
proceeded ex parte.
13. Subsequently, the plaintiff led evidence by way of affidavit and duly
th th
proved the e-mails dated 27 April, 2009, 5 May, 2009 along with draft of
th th
licence agreement dated 14 May, 2009, 20 May, 2009, legal notice dated
th th
15 July, 2009, defendant’s reply dated 30 July, 2009 and plaintiff’s
th
rejoinder to the reply dated 20 August, 2009. Plaintiff’s witnesses have
also proved cue sheet identifying specific instances of infringement by the
th th
defendant during the period 14 April, 2009 to 18 April, 2009 as well as
sample Assignment Deeds which illustrate that the plaintiff company is the
exclusive copyright owner of the said works.
14. Mr. Deepak Kamlesh Pania, PW-2 has proved the cue sheet filed with
th
his affidavit dated 28 June, 2011 as well as CD of the infringing broadcast
th th st
by the defendant for the period 14 April, 2009 to 18 April, 2009 and 1
th st th
June, 2009 to 30 June, 2009 and 1 July, 2009 to 9 July, 2009.
15. Having heard learned counsel for the plaintiff and having perused the
ex parte evidence as well as documents placed on record, this Court is of the
opinion that plaintiff has proved the facts stated in the plaint and has also
exhibited the relevant documents in support of its case. Since the plaintiff’s
evidence has gone unrebutted, said evidence is accepted as true and correct.
16. This Court is further of the opinion that defendant has infringed the
plaintiff’s rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii) and 14(e)(iii)
CS(OS) 1742/2009 Page 4 of 6
read with Section 51 of the Copyright Act, 1957 and consequently, plaintiff
is entitled to remedies as provided under Section 55 of the Copyright Act,
1957.
17. The defendant has deliberately stayed away from this Court
proceeding with a view to frustrate the plaintiff’s claim of damages. The
said act is unjustified. This Court is also in agreement with the submission
of learned counsel for plaintiff that defendant's illegal activities have a
cascading effect and set a bad example for other licencees of the plaintiff.
Consequently, the plaintiff is also held entitled to punitive damages against
the defendants for failing to appear and evading the necessity to present
accounts.
18. In fact, in Microsoft Corporation Vs. Mr. Kiran and Anr., 2007 (35)
PTC 748 (Del.) this Court has held as under:-
“ ..........the defendants have willfully, intentionally and flagrantly
violated the copyrights and trade mark of the plaintiff. The defendants'
have disregarded the plaintiff's rights and have caused "deliberate
and calculated" infringement of copyrights and trademark of the
plaintiff. Thus, I am inclined to grant damages to the plaintiff. In the
suit damages claimed are Rs. 5 lacs, though the total damages would
work out to be much more. Therefore, I have no option but to limit the
claim of the plaintiff to Rs. 5 lacs.”
19. In ITC Ltd. Vs. Mr. Sunil and Ors., MIPR 2007 (2) 152 this Court
has held as under:-
“........damages ought to be awarded against defendants who choose
to stay away from proceedings of the Court and they should not be
permitted to enjoy the benefits of evasion of court proceedings.”
20. Also, in the case of Times Incorporated Vs. Lokesh Srivastava and
Ors., 2005 (3) PTC 3 Del this Court has held as under:-
CS(OS) 1742/2009 Page 5 of 6
“Thwart of compensatory damages to a plaintiff is aimed at
compensating him for the loss suffered by him whereas punitive
damages are aimed at deterring a wrong doer and the like minded
from indulging in such unlawful activities. Whenever an action has
criminal propensity also the punitive damages are clearly called for
so that the tendency to violate the laws and infringe the rights of
others with a view to make money is curbed. The punitive damages
are founded on the philosophy of corrective justice ad as such, in
appropriate cases these must be awarded to give a signal to the wrong
doers that law does not take a breach merely as a matter between
rival parties but feels concerned about those also who are not party to
the list but suffer on account of the breach. In the case in hand itself, it
is not only the plaintiff, who has suffered on account of the
infringement of its trade mark and Magazine design but a large
number of readers of the defendants' Magazine 'TIME ASIA
SANSKARAN' also have suffered by purchasing the defendants'
Magazines under an impression that the same are from the reputed
publishing house of the plaintiff company. This Court has no
hesitation in saying that the time has come when the Courts dealing
actions for infringement of trade marks, copy rights, patents etc.
should not only grant compensatory damages but award punitive
damages also with a view to discouragend dishearten law breakers
who indulge in violations with impunity out of lust for money so that
they realize that in case they are caught, they would be liable not only
to reimburse the aggrieved party but would be liable to pay punitive
damages also, which may spell financial disaster for them.............
.......This Court is of the view that the punitive damages should be
really punitive and not flee bite and quantum thereof should depend
upon the flagrancy of infringement......”
21. Consequently, present suit is decreed in accordance with para 36(i) as
well as costs assessed at Rs.50,000/-. The plaintiff is also held entitled to
compensatory damages of Rs.2,00,000/- and punitive damages of
Rs.3,00,000/-. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J
MAY 13, 2013
rn
CS(OS) 1742/2009 Page 6 of 6
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1742/2009
SUPER CASSETTES INDUSTRIES ..... Plaintiff
Through Ms Geetanjali Visvanathan and
Ms. Ayushi Kiran, Advocates
versus
M/S. RACHANA TELEVISION PVT. LTD. ..... Defendant
Through None
th
% Date of Decision: 13 May, 2013
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
MANMOHAN , J: (Oral)
1. Present suit has been filed for permanent injunction for infringement
of copyright, damages, delivery up etc. The prayer clause in the plaint is
reproduced hereinbelow:-
“36. (i) An order of permanent injunction restraining the
Defendant, its officers, servants, agents and representatives and
all others acting for and on their behalf from recording,
distributing, broadcasting or otherwise publishing or in any
other way exploiting any films, sound recordings, music, lyrics in
the Plaintiff’s repertoire or doing any other act that would lead
to infringement of the Plaintiff’s copyright;
CS(OS) 1742/2009 Page 1 of 6
(ii) An order for rendition of accounts of profits directly or
indirectly earned by the Defendant from the infringing activities
and conduct, and a decree for the amount so found due to be
passed in favour of the Plaintiff;
(iii) An order of delivery up to the Plaintiff or its authorized
representative by the Defendant of all infringing tapes, copies
and negatives, etc bearing the copyrighted materials of the
Plaintiff;
(iv) An order requiring the Defendant to pay to the Plaintiff
damages as stated hereinabove.
(v) An order awarding the costs of the present suit to the
Plaintiff.”
2. Learned counsel for the plaintiff fairly states that she does not wish to
press prayers (ii) and (iii) of the plaint. The aforesaid statement is accepted
by this Court and plaintiff is held bound by the same.
3. It is the plaintiff's case that it is one of the most reputed music
companies in the country and is the owner of a large repertoire of
copyrighted works, including audio visual works, sound recordings and
underlying musical and literary works.
4. It is stated that one of the important aspects of the plaintiff’s business
is to give licences to various organizations such as Broadcasting
Organizations, Television Channels, FM Radio Stations etc. for the use of its
copyrighted works. It is further stated that some of the television news
channels that have entered into licence agreements with the plaintiff include,
Aaj Tak, Headlines Today, Tez, CNN IBN, IBN 7, CNBC-TV-18, NDTV
INDIA, NDTV 24 x 7, Times Now etc.
CS(OS) 1742/2009 Page 2 of 6
5. The defendant, M/s. Rachana Television Private Limited, a
Hyderabad based company, owns and runs a Telugu news channel by the
name of “NTV”. It is stated by learned counsel for the plaintiff that like any
other channel the defendant makes extensive use of Hindi songs and film
extracts.
6. In the plaint it is stated that in April, 2009 in the course of random
monitoring of the defendant’s broadcasts, the plaintiff company came to
know about unauthorised and unlicensed use of its copyrighted works on the
defendant’s channel.
7. It is the plaintiff’s case that on coming to know of the said
infringement, it initially made efforts to resolve the matter amicably with the
defendant. However, it is stated that the negotiations ended in a failure as
defendant neither obtained a licence nor stopped broadcast of plaintiff’s
content on its channel.
th
8. Thereafter the plaintiff sent a legal notice dated 15 July, 2009
requesting the defendant to cease and desist from making such infringing
broadcast and to pay the requisite licence fee.
th
9. It is stated that the the defendant in its reply dated 30 July, 2009
denied all the plaintiff’s averments including the factum of negotiation and
broadcasts.
10. As despite a rejoinder, defendant’s infringing acts still continued, the
plaintiff filed the present suit.
th
11. Upon the present suit being filed, this Court on 15 September, 2009
passed an ad interim ex parte injunction order restraining the defendant from
either engaging in themselves, or from communicating to the public or
broadcasting or otherwise publishing or in any manner exploiting any films
CS(OS) 1742/2009 Page 3 of 6
or sound recordings or literary works (lyrics) or Musical works (musical
composition) or other works or a part thereof that is owned by the Plaintiff,
or doing any other act that would lead to infringement of the plaintiff's
copyrights.
st
12. On 21 January, 2011, since none appeared for the defendant, it was
proceeded ex parte.
13. Subsequently, the plaintiff led evidence by way of affidavit and duly
th th
proved the e-mails dated 27 April, 2009, 5 May, 2009 along with draft of
th th
licence agreement dated 14 May, 2009, 20 May, 2009, legal notice dated
th th
15 July, 2009, defendant’s reply dated 30 July, 2009 and plaintiff’s
th
rejoinder to the reply dated 20 August, 2009. Plaintiff’s witnesses have
also proved cue sheet identifying specific instances of infringement by the
th th
defendant during the period 14 April, 2009 to 18 April, 2009 as well as
sample Assignment Deeds which illustrate that the plaintiff company is the
exclusive copyright owner of the said works.
14. Mr. Deepak Kamlesh Pania, PW-2 has proved the cue sheet filed with
th
his affidavit dated 28 June, 2011 as well as CD of the infringing broadcast
th th st
by the defendant for the period 14 April, 2009 to 18 April, 2009 and 1
th st th
June, 2009 to 30 June, 2009 and 1 July, 2009 to 9 July, 2009.
15. Having heard learned counsel for the plaintiff and having perused the
ex parte evidence as well as documents placed on record, this Court is of the
opinion that plaintiff has proved the facts stated in the plaint and has also
exhibited the relevant documents in support of its case. Since the plaintiff’s
evidence has gone unrebutted, said evidence is accepted as true and correct.
16. This Court is further of the opinion that defendant has infringed the
plaintiff’s rights under Sections 14(a)(iii), 14a(iv), 14(d)(iii) and 14(e)(iii)
CS(OS) 1742/2009 Page 4 of 6
read with Section 51 of the Copyright Act, 1957 and consequently, plaintiff
is entitled to remedies as provided under Section 55 of the Copyright Act,
1957.
17. The defendant has deliberately stayed away from this Court
proceeding with a view to frustrate the plaintiff’s claim of damages. The
said act is unjustified. This Court is also in agreement with the submission
of learned counsel for plaintiff that defendant's illegal activities have a
cascading effect and set a bad example for other licencees of the plaintiff.
Consequently, the plaintiff is also held entitled to punitive damages against
the defendants for failing to appear and evading the necessity to present
accounts.
18. In fact, in Microsoft Corporation Vs. Mr. Kiran and Anr., 2007 (35)
PTC 748 (Del.) this Court has held as under:-
“ ..........the defendants have willfully, intentionally and flagrantly
violated the copyrights and trade mark of the plaintiff. The defendants'
have disregarded the plaintiff's rights and have caused "deliberate
and calculated" infringement of copyrights and trademark of the
plaintiff. Thus, I am inclined to grant damages to the plaintiff. In the
suit damages claimed are Rs. 5 lacs, though the total damages would
work out to be much more. Therefore, I have no option but to limit the
claim of the plaintiff to Rs. 5 lacs.”
19. In ITC Ltd. Vs. Mr. Sunil and Ors., MIPR 2007 (2) 152 this Court
has held as under:-
“........damages ought to be awarded against defendants who choose
to stay away from proceedings of the Court and they should not be
permitted to enjoy the benefits of evasion of court proceedings.”
20. Also, in the case of Times Incorporated Vs. Lokesh Srivastava and
Ors., 2005 (3) PTC 3 Del this Court has held as under:-
CS(OS) 1742/2009 Page 5 of 6
“Thwart of compensatory damages to a plaintiff is aimed at
compensating him for the loss suffered by him whereas punitive
damages are aimed at deterring a wrong doer and the like minded
from indulging in such unlawful activities. Whenever an action has
criminal propensity also the punitive damages are clearly called for
so that the tendency to violate the laws and infringe the rights of
others with a view to make money is curbed. The punitive damages
are founded on the philosophy of corrective justice ad as such, in
appropriate cases these must be awarded to give a signal to the wrong
doers that law does not take a breach merely as a matter between
rival parties but feels concerned about those also who are not party to
the list but suffer on account of the breach. In the case in hand itself, it
is not only the plaintiff, who has suffered on account of the
infringement of its trade mark and Magazine design but a large
number of readers of the defendants' Magazine 'TIME ASIA
SANSKARAN' also have suffered by purchasing the defendants'
Magazines under an impression that the same are from the reputed
publishing house of the plaintiff company. This Court has no
hesitation in saying that the time has come when the Courts dealing
actions for infringement of trade marks, copy rights, patents etc.
should not only grant compensatory damages but award punitive
damages also with a view to discouragend dishearten law breakers
who indulge in violations with impunity out of lust for money so that
they realize that in case they are caught, they would be liable not only
to reimburse the aggrieved party but would be liable to pay punitive
damages also, which may spell financial disaster for them.............
.......This Court is of the view that the punitive damages should be
really punitive and not flee bite and quantum thereof should depend
upon the flagrancy of infringement......”
21. Consequently, present suit is decreed in accordance with para 36(i) as
well as costs assessed at Rs.50,000/-. The plaintiff is also held entitled to
compensatory damages of Rs.2,00,000/- and punitive damages of
Rs.3,00,000/-. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J
MAY 13, 2013
rn
CS(OS) 1742/2009 Page 6 of 6