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HIGH COURT OF DELHI
Date of Decision: 24th November, 2022
MEBIGO LABS PRIVATE LIMITED ..... Plaintiff
Through: Mr. Sunil Dalal, Sr. Advocate with Mr. Aditya Narayan Mahajan, Mr. Aneesh Sadhwani, Mr. Jatin Kumar, Mr. Shanul Kadian, Ms. Manisha Saroha & Ms. Pratibha, Advocates
(M-7875571073)
Through: Mr. Pravin Anand, Mr. Shantanu Sahay & Ms. Imon Roy, Advocates for D-1 (M-8210095739)
JUDGMENT
1. This hearing has been done through hybrid mode. I.A. 19460/2022 (STAY)
2. The Plaintiff - Mebigo Labs Pvt. Ltd. has filed the present suit seeking permanent injunction restraining against the Defendants from committing acts of copyright infringement, unfair competition etc.
3. The Plaintiff holds and operates an online platform called KuKu FM which is an online audio content platform having content such as audio books, audio CDs, podcasts etc. The said KuKu FM platform is available through the website www.kukufm.com as well as a mobile application which is stated to be available on various application platforms such as Google Play store and Apple Store.
4. The Plaintiff claims to have exclusive rights to and licenses of translations/audio adaptation of various books. One such audio book which is the subject matter of the present suit is the Hindi translation of the book “Mossad: The Greatest Mission of the Israeli Secret Service” authored by Michael Bar-Zohar and Nissim Mishal (“hereinafter, the Subject Audio Book”). The Plaintiff claims that it entered into a Publisher Assignment Agreement with Defendant No.2 - M/s Manjul Publishing House Private Limited for the license of the said audio book. The Plaintiff further, submits that the translations/audio adaptation of the Subject Audio Book are available on its platform.
5. The case of the Plaintiff is that Defendant No.1 runs a platform known as Pocket FM which provides services almost identical to the Plaintiff’s online platform and has made available the Subject Audio Book on its platform, without authorisation from the Plaintiff. Thus, the Plaintiff submits that the Defendants have violated the exclusive copyrights of the Plaintiff in regard to the Subject Audio Book.
6. When the matter was listed yesterday, ld. Counsel for the Defendants had accepted notice and had sought time to seek instructions. It is submitted by Mr. Anand, ld. Counsel for Defendants that the Defendant No.1 is willing to make the statement in the following effect: “1. Defendant No. 1, Pocket FM Pvt. Ltd. is an entity that respects intellectual property and rights of the copyright holders. It has previously taken legal actions against third parties including the Plaintiff herein, Kuku FM (Mebigo Labs Pvt. Ltd.), pressing for reliefs against infringement of Pocket FM's intellectual property rights. Hence, Pocket FM has no intention to violate third party rights.
2. It is to be noted that the impugned audiobook titled "Mossad: Greatest Mission of the Israeli Secret Service" was published inadvertently around 25 August 2022 on the bona fide assumption that the book is in the public domain and out of copyright.
3. However, the matter has now come to the attention of Pocket FM's legal team yesterday, 23 November 2022, through communications from its counsels, Anand and Anand, duly authorised to represent Pocket FM Pvt. Ltd. in the present lawsuit.
4. The impugned uploaded audiobook was immediately removed from the Pocket. FM platforms, respecting third party rights. Pocket FM also has no intention of uploading the same again without license.
5. In view of the above, the Defendant No. 1 undertakes not to violate the rights of the copyright holder in the same.”
7. Mr. Dalal, ld. Counsel for the Plaintiff submits that insofar as the present interim injunction application is concerned, the statement made by the Defendant No.1 that the Subject Audio Book was inadvertently published is not accepted by the Plaintiff. Mr. Anand, ld. Counsel submits that the Defendants have removed infringing copy of the Subject Audio Book from their platform and do not intend to upload the same. Further, the Defendants shall ensure that the Subject Audio Book is not uploaded even in future.
8. Heard. The present injunction application seeks restraint orders against the Defendant publishing and making available the infringing audio books on its platforms. Since the Defendant No.1 has removed infringing copy from its Pocket FM platform and has undertaken not to publish the same in future the present application can be disposed of by accepting the statement made by the Defendant. In view of the statement made it is directed that the Defendants shall ensure that the Subject Audio Book i.e. “Mossad: The Greatest Mission of the Israeli Secret Service” is not made available on the Defendant No.1’s platform Pocket FM or communicated in any manner whatsoever by the Defendant no.1, without authorisation or licence, during the pendency of the present suit or during the term of copyright of the said book, whichever is earlier.
9. I.A 19460/2022 is disposed of in the above terms.
10. Let the plaint be registered as a suit.
11. Issue summons to the Defendants through all modes upon filing of Process Fee.
12. The summons to the Defendants shall indicate that a written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
13. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
14. It is noted that a connected suit between the same parties being CS(COMM) 319/2022 titled Pocket FM Pvt. Ltd. v. Mebigo Labs Pvt. Ltd. & Anr. which has been filed by the Defendants against the Plaintiff is also pending.
15. Ld. Counsels for the parties submit that the parties are willing to explore the possibility of an amicable resolution of the disputes between them.
16. Accordingly, parties are referred to the Delhi High Court Mediation and Conciliation Centre (hereinafter "Mediation Centre") on 30th November, 2022 at 3:00 p.m. Parties to appear before the Mediation Centre either virtually or physically, subject to convenience of all concerned. It shall be ensured that competent representatives of the parties shall be present in the mediation proceedings.
17. List before the Joint Registrar for marking of exhibits on 9th January,
2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
18. List before Court on 10th February, 2023.
PRATHIBA M. SINGH JUDGE NOVEMBER 24, 2022 MR/KT