By T. Farook Thajudeen
The Colombo Commercial High Court has refused Microsoft Corporation of USA issuing an interim injunction preventing the defendants in a software piracy case from marketing or selling and or offering for sale or distributing computer containing reproductions of Microsoft Windows XP Professional and Microsoft Office Enterprise 2007.
Microsoft Corporation, One Microsoft Way Redmond, WA 98052-6399 of USA sought the court to issue an interim injunction preventing the Defendants Mohamed Uvais Mohamed Dilshad, the proprietor of Media Centre at No. 315, 1st Floor Unity Plaza, Colombo 4, from selling, offering for sale or distributing any computer containing unlicensed or unauthorised pirated reproductions of Microsoft Windows XP Professional and Microsoft Office Enterprise 2007.
Counsel Harsha Amarasekera appearing with Kanchana Pieris instructed by Sudath Perera Associated for the plaintiff prayed for an interim injunction preventing the defendant from marketing, selling or offering for sale or distributing any computer containing unlicensed, unauthorised or pirated reproductions or copies of Microsoft Windows XP Professional and Microsoft Office Enterprise 2007.
The Counsel claimed that the plaintiff was the owner and proprietor of the software Microsoft Windows XP Professional and Microsoft Office Enterprise 2007. The Counsel alleged that the defendant was selling unlicensed and pirated copies of such software by loading the same to computers sold by the defendant. The counsel contended that the plaintiff’s registered trademarks were in the software and thereby had violated the plaintiff’s rights and had constituted an act of unfair competition.
The defendant’s Counsel M.C.M. Muneer instructed by Chandima Samarasiri submitted that he would not dispute the fact that the plaintiff was the owner of the copyright of the software and the registered owner of the two trademarks.
He denied that the software of the petitioners was being installed into the computer as part of the sale. The Counsel contended that the ‘PC Examination Report’ revealed that the computer was an assembled one without any serial number or certificate of authenticity.
The Commercial High Court Judge Mahinda Samayawardena delivering his order on the interim injunction observed that an ex parte enjoining order had been already issued by the court which was in operation until the day of the inquiry.
The Judge observed that the most important fact that had to be proved was that the software had been installed at the time of the purchase of the computer.
The Judge noticed that an affidavit affirmed by the purchaser Chatura Chintaka Abeydeera had stated that he had printed some screen shots depicting Microsoft Windows and Windows XP trademarks or logos from the computer.
The purchaser without giving any reason had stated that he gave a fictitious name to the seller at the time of purchasing the computer as G. Gunaselan.
The Judge further observed that against this the backdrop, the defendant was totally denying the fact that the software was installed at the time of the sale. The screen shots could be obtained from any computer to which the same software is installed.
The Judge said it was not fair for the court to come to a conclusion or to draw any interference against the defendant only by relying on the affidavit of the purchaser without him being subjected to cross examination on material points to ascertain the truth of what the purchaser asserts.
Further, Chatura Chintaka Abeydeera had stated that the computer was purchased from Lapro Techonologies (Private) Ltd. of Lucky Plaza, Colombo 3 and not from the establishment of the defendant. The injunction was refused with cost.