Sap Se v. Intellipaat Software Solutions Private Limited & Ors

order dated

04.10.2013and the plaintiffs permitted to file affidavits by way of exparte evidence.

¶4 The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights Society Ltd. Vs. Gauhati Town Club MANU/DE/0582/2013 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint."

¶10The use of the 'SAP' or 'Sap cloouds' would be clearly violative of the Plaintiff's statutory and common law rights. In this background, the suit

of the Plaintiff is decreed against Defendant No. 30 to 32. A decree is passed restraining the Defendant No. 30 from using www.sapcloouds.com or any other domain name or mark or logo or name which is identical or deceptively similar to the Plaintiff's mark SAP.

¶11Insofar as intermediaries are concerned, Defendant Nos. 3 to 24 they shall ensure that www.sapcloouds.com continues to remain blocked. The bank shall also ensure that the account which has been frozen on 8th February, 2021 shall continue to remain frozen.

¶12The concerned Domain Name Registrar is directed to transfer the domain name to the Plaintiff subject to payment of any registration charges, if any.

¶13Decree sheet be drawn accordingly.

PRATHIBA M. SINGH JUDGE JULY 21, 2023 dj/am

[Corrected and Released on 27th July, 2023]

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 21st July, 2023 + SAP SE ..... Plaintiff Through: Mr. Ranjan Narula and Ms. Shashi Ojha, Advocates. versus INTELLIPAAT SOFTWARE SOLUTIONS PRIVATE LIMITED & ORS. ..... Defendants Through: Mr. Anand Shankar Jha, Ms. Meenakshi Devgan, Mr. Abhilekh Tiwari & Mr. Sachin Mintri, Advocates for D-33. (M: 7428307214) CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. 2. The present suit for permanent injunction has been filed by SAP SE against various Defendants who were using the mark SAP as domain names with different variations. Initially, the present suit was filed impleading 26 Defendants, wherein Defendant No. 1- Intellipaat Software Solutions Private Limited, was infringing the Plaintiff's rights in its various software programmes under the name 'SAP' and Defendants Nos. 2-24 were intermediaries. The Plaintiff had also impleaded Department of Telecommunications and Ministry of Electronics and Information Technology (MEITY), of the Union of India as Defendant Nos. 25-26. In addition, Domain Name Registrars (DNRs) GoDaddy.com, LLC and Cloudflare, Inc. were impleaded as Defendant Nos. 27 and 28 to secure the prayer for deactivation of access to the impugned website i.e., www.intellipaat.com. Defendant No. 29- ICICI Bank was also impleaded seeking a direction for freezing the account of Defendant No. 1. 3. The Plaintiff company was incorporated in Germany and adopted the mark SAP in 1972. The grievance in this suit is that the Defendant No.1 i.e., Intellipaat Software Solutions Pvt. Ltd. had registered a domain name www.intellipaat.com, on which it is providing training on SAP products/services using copyright-protected SAP training materials and software. Vide order dated 5th August, 2020, the Court had granted an interim injunction in the following terms: "8. Considering the averments in the plaint as also the documents filed therewith, this Court finds that the plaintiff has made out a prima facie in its favour and in case no ad-interim ex-parte injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff. Consequently, an ad-interim injunction is granted in favour of the plaintiff and against the defendants in terms of prayers (a), (b) and (c)of IA 6558/2020 till the next date of hearing before this Court. In view of the undertaking on behalf of the defendant No. 1 that the defendant No. 1 will be removing all the alleged infringing material from the website of the defendant as also from third party platform where unauthorized use of the SAP programmes are going on within 72 hours, at this stage, this Court is refraining from passing any ad-interim order in terms of prayer (e), (f) and (g) of the application. However, if within 72 hours, the alleged infringing material is not removed from the website of the defendant No. 1 as also from the platforms of third parties, the plaintiff would be at its liberty to again approach this Court. 9. Learned counsel for the defendant No. 1, during the course of arguments stated that the defendant No. 1 has actually purchased the licences from a third party in respect of the plaintiff's copyright material. Defendant No. 1, on affidavit will disclose the identity and contact details/addresses of the said third party who is issuing the licences on behalf of the plaintiff as also the copy of the licence agreements which the defendant No. 1 claims to have obtained from the third party. The defendant No. 1 along with its written statement and reply affidavit to the application will also file its statement of accounts w.e.f. 16th August, 2019 in a sealed cover in respect of its earnings from the use of various SAP software programmes." 4. The said injunction which was granted on the said date i.e., prayer A, B and C reads as under: "(a) An order of permanent injunction restraining the Defendant No. 1, its di