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Microsoft Corporation & Anr v. Kurapati Venkata Jagdeesh Babu & Anr

Issued: February 28 2014

“Microsoft” has been declared a well-known mark through an ex-parte judgment concerning the plaintiff’s registered mark “Microsoft” under Classes 9 and 16 in the case of Microsoft Corporation & Anr v. Kurapati Venkata Jagdeesh Babu & Anr. The plaintiff, Microsoft Corporation, a company incorporated in the United States in 1975, is stated to be the biggest software publisher for personal and business computing in the world. The defendants have a trademark application under the trade name “Microsoft Multimedia” under Class 41 for services in relation to educational and training purposes.

 

The plaintiffs submitted that Microsoft is a well-known mark across the world and enjoys a stellar reputation all across the world. Extensive evidence was filed by the plaintiffs to establish its case, including the Forbes list of the most powerful brands for the year 2013 which recognized the plaintiffs company to be the second-most valuable company in the world. Therefore, it was submitted that if the public came across or used a product, service or domain name bearing the plaintiff’s trademark, it is likely to believe that they have a connection to the plaintiffs.

 

The Plaintiffs have already successfully enforced the rights in the Microsoft trademark several times in the past, and the Delhi High Court itself had granted more than 150 ex parte ad interim injunctions protecting different facets of the Intellectual property belonging to the plaintiffs including its well-known trademark Microsoft. The Learned Single Judge noted that although summons were issued to the defendants in the suit and notices were also issued in the application, the defendants failed to appear during the entire phase of the suit. An ex parte ad interim injunction was passed in favour of the plaintiff and against the defendant restraining them from using the Microsoft mark in relation to their domain name, any services or products given or offered by them to the public.

 

Finally, the Learned Judge held that as per the material placed on record and the statement made in the plaint and in the affidavit which have been proved in evidence, it is clear that the trademark Microsoft is a well-known trademark. The same is known to most of the people in the entire world. No one is entitled to use the same either as a trademark or part of its trading style/ corporate name in relation to similar or dissimilar business as the said trademark has a unique goodwill and reputation.

 

Further, as the evidence filed by the plaintiff has gone un-rebutted as no cross-examination of the plaintiffs witnesses were carried out, therefore, the statements made by the plaintiff are accepted as correct deposition. The Learned Judge was also pleased to order that under these facts and circumstances, the plaintiff is entitled to a decree for permanent injunction against the defendants.

 

On the question of pecuniary damage, the court relied on two Delhi High Court judgments, namely Time Incorporated v. Lokesh Srivastava & Anr (2005 (30) PTC 3 (Del.)) and Microsoft Corporation v. Rajendra Pawar & Anr (2008 (36) PTC 697 (Del.)) and granted a relief of Rs200,000 (US$3,200) as compensatory damages and a sum of Rs300,000 (US$4,800) as punitive/exemplary damages as well as damages on account of loss of reputation and goodwill of the plaintiffs. The plaintiffs were also awarded Rs50,000 (US$805) as costs of the suit.

 

Associate D Neha Reddy assisted in the preparation of this column. 



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About the Author

Pravin Anand is managing partner of Anand and Anand in Noida, where his practice covers intellectual property, litigation and dispute resolution. He has been a counsel in several landmark IP cases involving the first Anton Piller Order (HMV cases); the first Mareva Injunction Order (Philips case); the first Norwich Pharmacal Order (Hollywood Cigarettes case); moral rights of artists (the Jatin Das case). He has been recognized for pro bono work for grassroots innovators (National Innovation Foundation Award).

 

Vaishali Mittal is a partner at Anand and Anand, where she works in the firm’s litigation department. She is a law graduate from Jamia Millia Islamia University; she also earned a bachelor’s degree in history (with honours) from Delhi University, where she was a gold medalist in her subject. She has over nine years of experience in IP spanning a wide range of subjects in highlycontested IP litigation matters. Mittal has a strong appreciation and valuable knowledge of critical strategies for litigation of IP issues in the Indian Courts. She has been involved in several landmark judgments that have brought repute to the firm and her handling of seriously contested IP matters has won accolades from the firm’s clients.