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2021 Supreme(Raj) 1557
RAJASTHAN HIGH COURT
Vijay Bishnoi, J.
Costar Group Inc. - Appellant
Versus
Arcgate Teleservices Private Limited - Respondent
S.B. Civil Writ Petition No. 9384/2021
Decided On : 30-07-2021
Mr M.S.Singhvi, Sr. Advocate assisted by Mr Muktesh Maheshwari Mr Faraz Sagar Mr Hiren Kamod Mr Aidan Choudhary Ms Simran Agarwal, Advocates, for the Petitioner
In copyright infringement cases, a prima facie case suffices for appointing a Court Commissioner to preserve evidence without requiring strict proof at the initial stage.
Headnote:
Commissioner - Copyright Infringement - CPC Order XXVI Rule 9 - The court emphasized the necessity of appointing a Court Commissioner to preserve evidence in copyright infringement cases, interpreting the need for a prima facie case without strict proof at the initial stage.
Fact of the Case:
The petitioners filed a writ petition against the trial court's order rejecting their application for ex parte appointment of a Court Commissioner under CPC Order XXVI Rule 9, alleging copyright infringement by the respondent on behalf of a competitor.
Finding of the Court:
The court found that the trial court erred in rejecting the application, as the petitioners had established a prima facie case of copyright infringement and the need to preserve evidence.
Issues: Whether the trial court erred in denying the ex parte appointment of a Court Commissioner for evidence preservation in a copyright infringement case.
Ratio Decidendi: The court held that in intellectual property cases, especially involving technology, strict proof of infringement is not required at the initial stage, and the appointment of a Court Commissioner is essential to prevent evidence destruction.
Result: The court reversed the trial court's decision and appointed ex parte Court Commissioners to preserve evidence.
JUDGMENT
This writ petition is filed by the petitioners being aggrieved with the order dated 06.04.2021 passed by Judge, Commercial Court, Udaipur (for short 'the trial court' hereinafter) in C.I.S. No.06/2021, whereby the application preferred on behalf of the petitioners for ex parte appointment of Court Commissioner as per the provisions of Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short 'CPC' hereinafter) has been dismissed.
The petitioners filed a suit for injunction against the respondent - Arcgate Teleservices Private Limited before the trial court, which is pending consideration. Along with the said suit, the petitioners also preferred an application under Order XXVI Rule 9 CPC seeking ex parte appointment of Court Commissioner.
As per the petitioners, petitioner No.1 is a company incorporated under the laws of the State of Delaware in the United States of America and petitioner No.2 is a wholly owned subsidiary of petitioner No.1. It is claimed that the petitioners are leading provider of commercial real estate information, analytics and online marketplaces in the United States of America and they have developed the most comprehensive database of commercial real estate in the world.
It is also claimed that the petitioners are touching average 24,000 brokers, owners, developers and other real estate professionals daily through phone calls canvassing a half million properties per year and are taking nearly one million photographs annually.
It is contended by the petitioners that website 'LoopNet' (available at http://www.loopnet.com) is the foremost digital marketplace for commercial real estate in the United States and it contains petitioners' copyrighted photographs and data from its database. Every day, buyers, sellers, lessors, lessees, owners and brokers access and use LoopNet to list, buy, sell, lease, rent or browse commercial real estate.
It is further contended by the petitioners that one of the current competitors of the petitioners in the United States of America is Commercial Real Estate Exchange, Inc. (CREXi). CREXi is a company incorporated in the State of California in the United States of America and as per its website, it describes itself as a commercial real estate marketplace that simplifies transactions for brokers with a suite of easy to use tools to manage the entire process from listing to closing. CREXi's website allows to use commercial real estate listings in markets across the United State of America. CREXi also runs an online auction marketplace.
It is further contended by the petitioners that the CREXi has raised a significant amount of funding recently and is competing with the petitioners. It is alleged that CREXi is attempting to build its own online commercial real estate marketplace and auction platform by free riding on petitioners' billions of dollars of investments and its three decades of hard work. It is also alleged that CREXi has accessed the petitioners' database and LoopNet more than a million times and forced the petitioners to file a lawsuit against it in the United States District Court for the Central District of California in the month of September, 2020. In the lawsuit, the petitioners have alleged that CREXi is involved in copyright infringement, violation of United States Digital Millennium Copyright Act, misappropriation, unfair competition, false advertising and breach of contract. In the very lawsuit, it is alleged that the respondent - Arcgate Teleservices Private Limited is working for CREXi and is accessing LoopNet without authorization for competitive purposes on behalf of CREXi in violation of LoopNet's terms and conditions, committing contributory infringement of the petitioners' copyrighted photographs and engaging in piracy/theft, improper access to petitioners' websites and misappropriation of the petitioners' proprietary contents at the behest of CREXi.
It is contended that in the lawsuit filed by the petitioners against the CREXi, it has not deni
