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RAJASTHAN HIGH COURT
Vijay Bishnoi, J.
Costar Group Inc. and Anr. – Petitioners
versus
Arcgate Teleservices Private
Limited – Respondent
S.B. Civil Writ Petition No.9384 of 2021
Decided on 30.7.2021
For the Petitioners:Mr. M.S. Singhvi, Sr. Advocate assisted by Mr. Muktesh Maheshwari, Mr. Faraz Sagar, Mr. Hiren Kamod, Mr. Aidan Choudhary and Ms. Simran Agarwal, Advocates
IMPORTANT POINT
Object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect infringing evidence and strict proof is not required to be given at initial stage.
Headnote:
Civil Procedure Code, 1908 – Order 26 Rule 9 – Appointment of ex-parte Court Commissioner – Object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect infringing evidence and strict proof is not required to be given at initial stage – Petitioners are able to prima facie prove that respondent has illegally accessed copyright photographs and database of petitioner-company from its website – Trial court has erred in not appointing ex-parte Court Commissioner in matter in hand – Respondent directed to co-operate and provide all assistance to Court Commissioners but without limitation to providing access. (Paras 23, 24, 25, 26 and 29)
Result: Petition allowed.
ORDER
Vijay Bishnoi, J.—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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. It is contended that in the lawsuit filed by the pe
