Advocate Prashant Mali
CYBER (IT ACT, 2000) CASE LAWS, Cyber Crime Cases
Cyber Cafe Owner Liability (S67C) Case Conviction | State Vs Vishal Bogade + 1(Maharashtra) Pdf File [Press Right Click to Download file]
Cyber Stalking Case Conviction | State Vs Yogesh Prabhu (cyber cell Mumbai) Pdf File [Press Right Click to Download file]
Data Theft Case Conviction | State Vs Prabhakar sampath (Hyderabad ) Pdf File [Press Right Click to Download file]
Nigerian Email Scam Case Conviction | State Vs Opara chilezien Joseph & Ors (Mah. ) Pdf File [Press Right Click to Download file]
1. Punjab-Haryana High Court (Section 65 and Section 66 of The IT Act,2000)
Sanjay Kumar vs State Of Haryana on 10th Jan, 2013 CRR No.66 of 2013 (O&M) 1
Present criminal revision has been preferred by the petitioner against judgment dated 21.08.2012 passed by the learned Sessions Judge, Faridabad, whereby an appeal preferred by the petitioner has been dismissed and judgment of conviction dated 01.09.2011 and order of sentence dated 03.09.2011 passed by learned Judicial Magistrate First CRR No.66 of 2013 (O&M) 2 Class, Faridabad, has been upheld, vide which the petitioner has been convicted for offences punishable under Sections 420, 467, 468, 471 of the Indian Penal Code and Sections 65 and 66 of the Information & Technology Act, 2000 and sentenced to undergo rigorous imprisonment as follows:-
Under Section Period Fine 420 IPC Two years Rs.1,000/- 467 IPC Three years Rs.2,000/- 468 IPC Two years Rs.1,000/- 471 IPC Two years Rs.1,000/- 65 I.T. Act Two years Rs.1,000/- 66 I.T. Act Two years Rs.1000/- In default of payment of fine, the petitioner shall further undergo simple imprisonment for a period of two months. All the sentences were ordered to run concurrently.
Brief facts of the prosecution case are that the Senior Branch
Manager, Vijay Bank, NIT, Faridabad moved a complaint dated 11.02.2003 before the Police stating that the petitioner was deputed by M/s Virmati Software and Telecommunication Ltd. to maintain the Software System supplied by them to the bank. He was also looking Software System of certain other banks. In connection with rendering such services, the petitioner was having access to their accounting system which was computerized and was also in a position to enter into ledgers and various other accounts. While reconciling the accounts, certain discrepancies were pointed out by the officials of the bank and in that process, it was revealed that the accused-petitioner, who was having SB Account No. 21499 in his CRR No.66 of 2013 (O&M) 3 personal name in their bank, manipulated the entries by forging and fabricating certain entries from one account to another, from the computer system by handling the software and got the entries pertaining to the amount of the the bank and withdrew the amounts from the bank on various dates by issuing cheques in his own favour and withdrew the amount from the cash counter of the bank as well as through transfer/clearing transactions. As per enquiry, it has been revealed that the accused by carrying out forgery, fabricating the entries in the computer system of the bank, illegally and wrongfully, withdrew Rs.17,67,409/- from the bank and thus, caused wrongful gain to himself and wrongful loss to the bank. The said Bank came to know regarding the fraud committed by the accused on 07.02.2003. thereafter, the accused was called to the bank and he was confronted with the details of the fraud but he gave evasive replies as only admitted having embezzled a sum of Rs. 17 lacs without giving further information or revealing the exact amount of fraud or the modus operandi of the same and also assured to pay back the amount to the bank.
On receipt of the complaint, a case bearing FIR No. 165 dated 11.02.2003, under Sections 406, 420, 467, 468, 469, 471 of the Indian Penal Code and Sections 65, 66 and 72 of the Information and Technology Act, 2000 was registered against the petitioner. After completion of investigation, challan against the accused-petitioner was presented in the Court. Thereafter, charge was framed against the accused petitioner to which he pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined PW1 A. CRR No.66 of 2013 (O&M) 4
Siridhar, PW2 Girish Kumar Verma, PW3 Maheshwar Rath, PW4 Ramesh Kumar Malik and PW5 Dalip Singh, DSP. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to the accused. He denied the same and pleaded innocence.
The learned trial Court, after appreciation of the evidence,convicted and sentenced the petitioner as aforesaid vide judgment and order dated 01.09.2011 and 03.09.2011 respectively. Thereafter, the petitioner preferred an appeal, which was dismissed by the learned Sessions Judge, Faridabad vide judgment dated 21.08.2012. Hence, this criminal revision.
I have heard learned counsel for the petitioner and perused the record. Learned counsel for the petitioner contends that the petitioner has been falsely implicated in this case as the complainant and eye witness were inimical to the petitioner as they were having a dispute about 15/16 years prior to the occurrence. Learned counsel further contends that there is no direct evidence to connect the petitioner with the alleged offence in question, therefore, no prima facie case has been made out against the petitioner
I have considered the contentions of the learned counsel for the petitioner. From perusal of the judgments of both the Courts below, it transpires that the allegations against the petitioner are that the petitioner CRR No.66 of 2013 (O&M) 5 has manipulated the computerized Bank account i.e. the interest entries and thereby cheated the complainant bank by forging electronic record in order to cause wrongful loss to the bank and wrongful gain to himself to the tune of Rs.17,67,409/-. It has come in the documentary evidence on record that the petitioner has forged the entries in the bank record and had thereby withdrawn a sum of Rs.17,67,409/-.
The learned Trial Court, after appreciating the evidence on record, observed as under:-
"9. All the prosecution witnesses have supported the prosecution case. The complainant PW-1 A. Siridhar and PW-2 Girraj Parshad Sharma have stated that the accused Sanjay Kumar Bhatia was the employee of M/s Virmati Software and Telecommunication Ltd. and have been appointed in their branch for the purpose of maintenance of Software System supplied by them to the bank. This fact stand corroborated by document Ex.P36 wherein in Team No. 7 the name of Sanjay has been mentioned along with his residence number and Pager number. Sanjay Kumar Bhatia has also opened an A/c No. 21499 in their bank as evident from the account opening form of the accused Sanjay Bhatia placed on record as Ex.P37 along with specimen signature Card Ex.P38 and the cheque book issued register Ex.P39. Further, from the bank statement of account no. 21499, Ex.P8, on 1.8.2001, Rs.2,00,000/- was deposited by clearing and Rs.1/- as interest. However, nothing is mentioned as to what is the basis of clearing. In this regard, PW-3 Maheshwar Rath stated that during his inquiry he could not find any supporting document or CRR No.66 of 2013 (O&M) 6 voucher. The accused has also not produced any evidence in this regard. Rather, Ex.PW1/D shows that even the amount of Rs.2,00,000/- has been transferred from interest account on 1.8.2001. This fact stand corroborated by the report Ex.P34 wherein it is mentioned that the accused has increased interest portion in his own account through first time creation to the extent of Rs.2,00,000/- and then applied interest along with other SB accounts and to mislead the Branch employees, the accused has splitted the transaction into 2 parts,one entry is shown as "by interest credit" as Rs.1.00 and the other by clearing as Rs.2,00,000/- and, therefore, the amount of Rs.2,00,000/- is reflected in account statement as `by clearing'.
10. Similarly, using the same modus operandi, accused forged the interest entries on 1.8.2002 and 2.8.2000 and got deposited Rs.3,00,000/- and Rs.4,20,000/- respectively in his account.
11. Further, the accused used the fixed deposit account of Sardar Jeet Singh. The account of Jeet Singh was opened on 8.3.2002 in which Rs.1,05,00,000/- was deposited on that day as evidence from Ex.P3. The statement of account of Sardar Jeet Singh Ex.P3 shows that an interest of Rs.8,46,489/- was deposited on 29.4.2002. However, the said interest calculated was an inflated one, calculated by forging entries to the effect as it the account of Jeet Singh was opened on a prior date. Thereafter, on 30.4.2002, accused transferred the amount of Rs.8,46,489/- to the account of Anil Kumar Sharma having A/c No. 22618 which had already been closed on 1.9.2001,as evident from Ex.P5, by forging the CRR No.66 of 2013 (O&M) 7 entries to the effect that it was changed in bank records form closed to o pen and on 8.5.2002, 13.5.2002 and 18.5.2002, accused transferred the amount of Rs.2,50,000/-, Rs. 2,50,000/- and Rs.3,47,409/- respectively from the account of Sh. Anil Kumar to his account as evident from Ex.P5 and Ex.P8 to Ex.P12. Further, PW-3 Sh. Maheshwar Rath has stated as also evident from his report Ex.P34 that the transaction rooted through theaccount of Jeet Singh and Anil Kumar has been deleted by accused using SRF files which were laterrecovered during Audit.
12. Moreover, Ex.P15 to Ex.P24 show that accused has withdrawn the said amount through cheques.
13. In this manner, the accused was dishonestly forged the bank records to cause wrongful loss to the bank and thereby cheated the concerned bank by depositing Rs.17,67,409/- in his account and thereafter withdrawing the same. Further, the accused has admitted his guilt vide letter Ex.P44. The signature of accused on the letter Ex.P44 are similar to the specimen signatures of accused on bank opening account card Ex.P38 as well as on the bank opening Account form Ex.P37. Furthermore, form the bare perusal of the confessional statement Ex.P44, it clearly emanates that the manner in which the word `Sanjay' has been written is similar to the manner word `Sanjay' has been written by accused below his signatures by accused as he even returned in his statement under Section 313 Cr.P.C. Moreover, Ex.P47 and Ex.P48 show that accused has tendered Rs.3,50,000/- to the bank in respect of the amount fraudulently withdrawn by him which shows the CRR No.66 of 2013 (O&M) 8 admission of guilt as evident from Ex.P47 and Ex.P48.
14. On the other hand, the learned counsel for the accused during the course of arguments has argued that no specific password was allotted to Sanjay. However, no doubt password is given to an employee but it has surfaced in the testimonies of the prosecution witnesses that for the purpose of maintaining the software and in this manner had assess to all those files to which only the employee of the bank could have. Moreover, as the amount was deposited in the account of accused and he has withdrawn it, there is no force in said argument.
15. In this manner, the accused had cheated the bank and forged the electronic record to cause wrongful loss to bank and wrongful gain to himself. The prosecution has been able to prove beyond reasonable doubts, the ingredients of Sections 420, 467, 468 and 471 IPC.
16. Furthermore, clearly the accused has tampered with the computer source document and he has also altered in the information which resided in the computer resource and by doing so he committed the offences under Sections 65 and 66 of the Information & Technology Act, 2000. At the same time, it is pertinent to mention that although accused was having secured assess to electrical record of the bank and he forged the entries and cheated to cause wrongful gain to himself but there is no such breach of confidentiality by disclosing the information to any other person and as such he is acquitted of offence under Section 72 of the Information & Technology Act, 2000."
The learned Trial Court was wholly justified in convicting the accused-petitioner and the learned Appellate court, as can be clearly seen, CRR No.66 of 2013 (O&M) 9 had not committed any error in upholding the conviction of the accused petitioner. Learned counsel for the petitioner failed to point out any misreading or non-reading of any evidence and could not point out any infirmity in the judgments of the Courts below. The findings of guilt, reached against the accused-petitioner does not, thus, suffer from any infirmity, legal or factual and does not therefore, warrant interference by this Court in exercise of this Court's revisional jurisdiction.
In view of the above, there is no merit in the contentions raised by the learned counsel for the petitioner.Dismissed in limine.
2. IN THE HIGH COURT OF MADRAS
Fatima Riswana v. State Rep. by ACP., Chennai & Ors AIR 2005 712.
The appellant is a prosecution witness in S.C. No. 9 of 2004 wherein respondents 2 to 6 are the accused facing trail for offences punishable under Section 67 of Information Technology Act, 2000 r/w Section 6 of Indecent Representation of Women (prohibition) Act, 1986, Under Section 5 & 6 of Immoral Traffic (Prevention) Act, 1956, Under Section 27 of Arms Act, 1959 And Sections 120(B), 506(ii), 366, 306 & 376 I.P.C. The said trial relates to exploitation of certain men and women by one of the accused Dr. L. Prakash for the purpose of making pornographic photos and videos in various acts of sexual intercourse and thereafter selling them to foreign websites. The said session's trail came to be allotted to the foreign websites. The said Session's trail came to be allotted to the V Fast Track Court, Chennai which is presided over by a lay Judge. When the said trail before the V Fast Track Court was pending certain criminal revision petitions came to be filed by the accused against the orders made by the said court rejecting their applications for supply of copies of 74 Compact Discs (CDs) containing pornographic material on which the prosecution was relying. The said revision petitions were rejected by the Madras High Court by its order dated 13th February, 2004 holding that giving all the copies of the concerned CDs might give room for copying such illegal material and illegal circulation of the same, however the court pemitted the accused persons to peruse the CDs of their choice in the Chamber of the Judge in the presence of the accused, their advocates, the expert, the public prosecutor and the Investigating Office and also observed that the case be transferred to another court with competent jurisdiction presided by a male officer at the option of the sessions judge and taking the same the accused filed a revision petition for transferred to Fast track 4 court presided by the male officer and the Appellant alleged that she would be embarrassed if the trail is conducted by the male presiding officer and that the lady sessions judge didn't object or the trail of the case and the Appellant alleged that she would be embarrassed if the trail is conducted by the male presiding officer and that the Lady sessions judge didn't object to the trail of the case in the fast track 5 and the high court has erred in transferring the case and the Appellant was not given any opportunity of being heard before the alleged transfer. The learned counsel for the respondents contended that the Appellant learned though arrayed as witness is for all purpose an accused herself and law officer appearing in the case had expressed their embarrassment in conducting the trial before a lady Presiding Officer and even though the Presiding Officer did not expressly record her embarrassment, it was apparent that she too wanted the case to be transferred to another court, therefore, this Court should not interfere with the order of transfer. It was held that this appeal has to be allowed in the sessions case No. 9 of 2004 now transferred to the IV Fast Track Court Chennai be Transferred back to the V Fast Track Court, Chennai.
3. IN THE HIGH COURT OF DELHI
Avnish Bajaj v State (N.C.T.) of Delhi (2005) 3 Comp LJ 364 (Del)
The accused is the CEO of Baaze.com, which Company facilitates the sale of any property, for which it receives commission and also generates revenue from advertisement carried on its web page. In the present case, Counsel for the State has argued that the accused was remiss, at the pain of culpability, in not stopping payment through Banking channels after learning of the illegal nature of the transaction. It has been strenuously contended that if bail is not granted it will adversely impact e-commerce, for which India may be the eventual loser. These are not considerations which India may be the eventual loser. These are not considerations which would prevail or tamper the Courts decision whether to grant or reject bail. Mr. Jaitely, counsel for the petitioner has underscored that in Section 67 of the Information Technology Act, 2000 an offence is committed by a person who publishes or transmits any material which is lascivious or appeals to the prurient or transmits any material which is lascivious or appeals to the prurient interest. Sections 292 and 294 of the Indian Penal Code have also been mentioned which contemplate the selling, letting on hire, distribution pr public exhibition of the absence matter. He has emphasized that the provision does not bring within its sweep the causing of the transmission in contradistinction to the publication of obscene material. Prima facie it has not been established from the evidence that has been gathered till date that any publication took place by the accused, directly or indirectly. The actual obscene recording/clip cannot be viewed on the portal of Bazze.com.
It was held that the accused has actively participated in the investigations, and nothing was even argued before it in contrary by Counsel for the State. The nature of the alleged offence is such that the evidence has already crystallised and may even be tamper proof. Even though the accused is no longer an Indian National, he is of Indian origin with family roots in our country. It cannot possibly be argued that a foreign national is disentitled to the grant of bail The accused is enlarged on bail subject to furnishing two sureties in the sum of Rs. 1,00,000/- each to the satisfaction of the concerned Court/ Metropolitan Magistrate/Duty Magistrate. The Accused shall also not leave the territories of India without the leave of the Court and far for this purpose shall surrender his passport to the Magistrate. It is implicit in the grant of bail that he shall participate and assist in the investigation. The Bail Application stands disposed of.
3A. IN THE HIGH COURT OF DELHI
Over three and a half years ago, an internet website carried a listing which offered for sale a video clip, shot on a mobile phone, of two children of a school in Delhi indulging in an explicitly sexual act. The petitioner, who was the Managing Director (MD) of the company that owned the website at the relevant point in time, asks this Court to annul his criminal prosecution for the offences of making available for sale and causing to be published an obscene product within the meaning of Section 292 Indian Penal Code (IPC) and Section 67 of the Information Technology Act 2000 (IT Act). This petition under Section 482 of the Code of Criminal Procedure 1973 ('CrPC') also raise questions concerning the criminal liability of directors for the offences attributable to a company, both under the IPC as well as the IT Act, particularly when such company is not arraigned as an accused. The website baaze.com provided an online platform or market where a seller and a buyer could interact.
The Court held that as the IPC is concerned there is no automatic criminal liability of a director where the company is arraigned as an accused. The absence of such a provision in the IPC could be viewed as a lacuna but is not to be lightly presumed as there have been numerous statutes enacted by Parliament thereafter which have incorporated such provisions. For instances, Section 85 It Act is similarly worded as Section 141 NI Act and incorporates a deemed criminal liability of the director. The IT Act amends certain provisions of the IPC as well. But Parliament has chosen not to make any amendment to incorporate such a provision in the IPC. The Court has therefore to proceed with the law as it exists, particularly since it is a penal statute which admits of strict construction.
The Court held that the case against the petitioner of the offence under Sections 292 and 294 IPC is quashed and the read with Section 85 IT Act will continue.
4. IN THE HIGH COURT OF MADRAS
S. Sekar v The Principal General Manager (Telecom) (B.S.N.L.)
The petitioner is an employee of the second respondent, B.S.N.L, working as a Telecom Technical Assistant (Switch). It so happened that while he was working in SIPCOT MBM Main Exchange, Keeranur, the B.S.N.L. higher officials suspected him and others for having committed offences in manipulating the computer system and thereby causing loss to B.S.N.L. The FIR in Crime No. 1 of 2004 was came to be registered on 06.01.2004 by the Police, Pudukottai, for the offences under Section 406, 420 and 468 I.P.C. and 43(g) of the Information Technology Act, 2000.
The main thrust of the grievance of the petitioner in this case is that when there is a special enactment namely, the Information Technology Act, 2000, which is in operation relating to the alleged misconduct attributed as against the petitioner, there is no question of invoking the penal sections under the Indian Penal Code, It is also his specific plausible argument that section 43(g) of the Information Technology Act, 2000, has been invoked without any basis. The Second respondent filed the computer which was adopted by the first respondent filed the computer which was adopted by the first respondent also, denying and refuting the allegations and the averments highlights that the FIR registered was proper and the Police is investigating into the matter properly.
The point for consideration is as to whether the FIR referred to supra, has to be declared null and void as prayed by the Writ petitioner?
It was held that the Police to investigate thoroughly into the matter and add or delete the penal Sections under the Information Technology Act, 2000, as well as IPC and ultimately, it is for the criminal court which would be seized of the matter to decide on that. The Section 43(g) of the Information Technology Act, 2000, invoked by the police and specified in the FIR is declared void. Accordingly, the Writ petition is ordered. No costs, connected M.P. is closed.
5. IN THE HIGH COURT OF ANDHRA PRADESH
Syed Asifuddin and Ors. v The State of Andhra Pradesh And Anr. 2005 Cri LJ 4314
These two petitions are filed by different persons under section 482 of Code of Criminal Procedure, 1973 (Cr. P.C.) seeking similar relief. Both the matters were admitted on the same day and since then both the matters are being disposed of as such, this common order covers both the matters. The petitioners in both the matters seek the relief of quashing FIR No. 20 of 2003 of Criminal Investigation Department (CID) Police, Hyderabad, registered under section 409, 420 and 120B of Indian Penal Code, 1860 (for short, IPC), Section 65 of the Information Technology Act, 2000 (for short IT Act) and section 63 of the copyright Act, 1957 (for short, Copyright Act).
While admitting the petition, this Court passed orders in criminal miscellaneous petition No. 3951 of 2003 staying all further proceeding including investigation of the crime pending disposal of the main petition. The Public Prosecutor filed criminal miscellaneous petition No. 232 of 2005 for vacating the said order. The matter were "Finally hared at that stage itself and are being, disposed of finally. The main allegation against the petitioners is that the MIN of Reliance phone is irreversibly integrated with ESN and the petitioners hacked ESN so as to wean away RIM customer to TATA Indicom service. The question is whether the manipulation of this electronic 32-bit number (ESN) programmed into Samsung N191 and LG-2030 cell phone instrument exclusively franchised to second respondent amounts to altering source code used by these computer handsets i.e., cell phone instruments. In the background facts, a question would also arise whether such alteration amounts to hacking with computer system? If the query answered in the affirmative, it is always open to the police to alter the FIR or it is always open to the criminal Court to frame a charge specifically with regard to hacking with computer system, which is an offence under Section 66 of the It Act. At this stage, we may read Sections 65 and 66 of the IT Act.
Crime No. 20 of 2003 in so far as it is under section 409, 420 and 120B of Indian Penal Code, 1860 is quashed and insofar as the crimes under Section 63 of the Copyright Act, 1957, the criminal petitions are dismissed. The CID Police, which registered Crime No. 20 of 2003, is directed to complete investigation and file a final report before the Metropolitan Magistrate competent to take cognizance of the case within a period of Three months from the date of receipt of this order. The criminal petitions are accordingly dismissed.
6. IN THE HIGH COURT OF MADRAS
D'zine Garage Pvt. Ltd. rep. by its Director Mr. Hari Sethuraman v D'zine Café FZE & D'zine Café FZE v D'zine Garage Pvt. Ltd. rep. by its Director Mr. Hari Sethuraman
Plaintiff registered proprietor of the service mark 'D'zine filed suit for permanent injection against Applicant-Defendant who was using the mark 'D'zine' café as a service mark and as part of their corporate name and domain name 'www.Dzinecafe.com'- Respondent/Plaintiff contended that the Applicant- Defendant has deliberately adopted a similar service mark/trade name D'zine café in a calculated attempt to cash in on the reputation and goodwill enjoyed by the Respondent/Plaintiff and to get illicit and quick gains without putting any substantial efforts – Interim injunction granted – Hence, application by Defendant to vacate interim injunction and to strike the pleadings and reject the plaint – Applicant-Defendant contended that the Respondent-Plaintiff has no office in India and hence present Court has no jurisdiction to try the matter and therefore, the plaint was liable to be rejected – Held, to justify an Order of rejection of plaint, the Defendant would be required to show a very strong case in his favour and the power would be exercised sparingly and only in exception cases, since it would interface with the right of the party to proceed with the trial to get to it legitimate and according to the substantive merit of his case – Such a case has not been made out by he Defendant – it was held that application for rejection of plaint not maintainable.
Defendant sought vacation of interim injunction on the ground that the registration is for a logo only and that 'D'zine' was not a coined word, it is a corrupt from of design and is commonly used – Further contented that, D'zine' café were sufficiently different and not likely to mislead and many others are using it – Held, for granting interim injunction phonetic similarly cannot be ignored and prior user must be proved and dishonest intention must be there – In the instant case, there is phonetic similarly – Further, 'D'zine not a generic word, it cannot be said to carry distinctive reference to a particular trade, becoming publici jiris – As business of parties are almost same and the fact that one is 'Dzine' café and other is 'Dzine' garage, clientele is likely to be confused and to t are the same – prior user established by Plaintiff – No specific denial of the charge that the Defendant is taking advantages of the plaintiff mark- Usage of the same word by others and others and that is a common word is no defence in an action for interim injunction – Interim injunction granted.
7. IN THE HIGH COURT OF GUJRAT
Nirav Navinbhai Shah & 4 ors. v State of Gujarat and Anr.
The applicants, original accused in crime I.C.R. No. 54 of 2004 dated 26.02.2004 registered with sector 7 police station Gandhinagar for offences punishable under sections 381, 408, 415, 418, 420 read with sections 34 and 120B of the Indian Penal Code and section 66 and 72 of the Information Technology Act, 2000 (herein after referred to as 'the IT Act for short) have preferred this application under section 482 of the Code of Criminal Procedure 1973 (herein after referred to as ' the code' for short) for quashing of FIR I.C.R. No. 54 of 2004 dated 26.02.2004 registered with Sector No. 7 Police Station Gandhinagar and the resultant Criminal Case No. 54 of 2004 dated 26.02.2004 registered with sector No. 7 Police station Gandhinagar and the resultant Criminal case No.3528 of 2004 pending before the judicial Magistrate First Class Gandhinagar, mainly on the grounds that the facts and allegation leading to lodging FIR show that the real dispute was a civil dispute and as the same has been amicably settled between the parties, no useful purpose would be served in continuing the criminal proceedings, rather continuation of same would be counter productive to the interest of justice.
The compliant also does not contain any essential ingredient for maintaining criminal proceeding for the alleged offences. As it’s stated in the arguments of the learned counsels that the parties have filed civil suits also in respect of the same dispute. The entire dispute between the parties is resolved by amicable settlement. The alleged hacking is perpetrated on the Complainants computer system only which said to have data pertaining to its client. The Counsels have submitted that on same of the web sites these data are already available. The dispute appears to be private in nature. The offence alleged is not strictly affecting or infringing any other individual or citizen. Thus looking to the nature of the disputes, it can well be said that continuation of the same is not in interest of justice. It was held that the FIR 54 of 2004 registered at sector 7 Police Station Gandhinagar and resultant Criminal Case No. 3528 of 2004 pending before the JMFC Gandhinagar deserve to be quashed in the interest of just and hereby they are quashed. Rule is made absolute.
8. CYBER DEFAMATION
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, Suit No. 1279/2001 Delhi HC
In India's first case of cyber defamation, a Court of Delhi assumed jurisdiction over a matter where a corporate’s reputation was being defamed through emails and passed an important ex-parte injunction.
In this case, the defendant Jogesh Kwatra being an employ of the plaintiff company started sending derogatory, defamatory, obscene, vulgar, filthy and abusive emails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director Mr. R K Malhotra. The plaintiff filed a suit for permanent injunction restraining the defendant from doing his illegal acts of sending derogatory emails to the plaintiff.
On behalf of the plaintiffs it was contended that the emails sent by the defendant were distinctly obscene, vulgar, abusive, intimidating, humiliating and defamatory in nature. Counsel further argued that the aim of sending the said emails was to malign the high reputation of the plaintiffs all over India and the world. He further contended that the acts of the defendant in sending the emails had resulted in invasion of legal rights of the plaintiffs.
Further the defendant is under a duty not to send the aforesaid emails. It is pertinent to note that after the plaintiff company discovered the said employ could be indulging in the matter of sending abusive emails, the plaintiff terminated the services of the defendant.
After hearing detailed arguments of Counsel for Plaintiff, Hon'ble Judge of the Delhi High Court passed an ex-parte ad interim injunction observing that a prima facie case had been made out by the plaintiff. Consequently, the Delhi High Court restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. Further, Hon'ble Judge also restrained the defendant from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.
This order of Delhi High Court assumes tremendous significance as this is for the first time that an Indian Court assumes jurisdiction in a matter concerning cyber defamation and grants an ex-parte injunction restraining the defendant from defaming the plaintiffs by sending derogatory, defamatory, abusive and obscene emails either to the plaintiffs or their subsidiaries.
Nasscom vs. Ajay Sood & Others
In a landmark judgment in the case of National Association of Software and Service Companies vs Ajay Sood & Others, delivered in March, ‘05, the Delhi High Court declared `phishing’ on the internet to be an illegal act, entailing an injunction and recovery of damages.
Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an insurance company in order to extract personal data from a customer such as access codes, passwords, etc. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve persons who pretend to represent online banks and siphon cash from e-banking accounts after conning consumers into handing over confidential banking details.
The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held phishing to be an illegal act by defining it under Indian law as “a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even to the person whose name, identity or password is misused". The court held the act of phishing as passing off and tarnishing the plaintiff’s image.
The plaintiff in this case was the National Association of Software and Service Companies (Nasscom), India’s premier software association. The defendants were operating a placement agency involved in head-hunting and recruitment. In order to obtain personal data, which they could use for purposes of head-hunting, the defendants composed and sent e-mails to third parties in the name of Nasscom.
The high court recognised the trademark rights of the plaintiff and passed an ex-parte ad-interim injunction restraining the defendants from using the trade name or any other name deceptively similar to Nasscom. The court further restrained the defendants from holding themselves out as being associates or a part of Nasscom.
The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the computers from which the fraudulent e-mails were sent by the defendants to various parties were taken into custody by the local commissioner appointed by the court.
The offending e-mails were then downloaded from the hard disks and presented as evidence in court.
During the progress of the case, it became clear that the defendants in whose names the offending e-mails were sent were fictitious identities created by an employee on defendants’ instructions, to avoid recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the array of parties as defendants in the case.
Subsequently, the defendants admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.
This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation; It clears the misconception that there is no “damages culture” in India for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and willingness to protect intangible property rights and send a strong message to IP owners that they can do business in India without sacrificing their IP rights.
10. State of Tamil Nadu v/s. Suhas Kutti, 2004
Assistant Commissioner of Police, Cyber Crime Cell, C.C.B.Egmore, Chennai.8 has filed Final Report against the accused, that on 7.2.04, evening at Cyber Café Hello World Centre, Sion, Mumbai having an I.P.126.96.36.199, the accused with intention of harming the reputation of the Complainant Ms. R, created user id in the name of her and composed an obscene message intending that such document shall be used for posting in different obscene Yahoo Group, with the intention to make others to believe that the document was made by her, so that the persons seeing the obscene message would send offending calls to her,in harming her reputation and by insulting her modesty by the words exhibited in the email and in the course of same transaction, on 7.2.04, evening at Cyber Café Hello World Centre, Sion, Mumbai, having an IP 188.8.131.52 the Accused posted obscene message which are lascivious and also have the effect to corrupt persons who are likely to read and see such obscene messages and caused to the published in different obscene Yahoo goups and in the course of same transaction, that on 9.2.04, morning, at Cyber Café Heighten Advertising, Mahim, Mumbai, having an IP 184.108.40.206 the accused with intention of harming the reputation of the complainant Ms. R entered user id. which was created by him in the name of the complainant and composed an obscene message intending that such document shall be used for posting in different obscene Yahoo groups, with the intention to make others to believe that the document was made by her, so that the persons seeing the obscene message would send offending calls to her, in harming her reputation and by insulting her modesty by the words exhibited in the email and that in the course of same transaction, that on 9.2.04, morning at cyber café Heighten Advertising, Mahim, Mumbai, having an IP 220.127.116.11, the accused posted obscene messages which are lascivious and also have the effect to corrupt person who are likely to read and see such obscene messages and caused to be published in different obscene Yahoo goups and thereby the accused have committed offences u/s 469 IPC, 67 I.T Act. 469 &509 IPC, and 67 of I.T. Act.
P.W. 1 is the only daughter of P.W.2 and P.W.3.P.W.2 is the father, P.W.3 is the mother. Presently, P.W.1 is working as a senior Executive (H.R.) in a multinational Company at Chennai. She studied her MBA Course in Mumbai in the year 1997, the accused studied with P.W.1 and she was his classmate is Mumbai. Accused belongs to Mumbai. On 9.2.04, She opened her Rediff e-mail and noticed the receipt of two obscene messages which were posted on 7.2.04 and 9.2.04. She took computer output of the obscene message posted on 7.2.04, Ex P.1 is the obscene message. The obscene message carried her Office phone numbers and her e-mail I.D. The house Phone number was wrongly given. The said obscene messages have been sent through Yahoo website to 5 sex groups. The computer printout obscene message posted in @ Radha lovers group is EX.P.2. On seeing the said messages, several persons sent the responsive message and many persons tried to contact her over phone. Ex P3 series is the responsive messages. Several Phone calls came to her office. P.W.1 informed the said matter to her parents. The messages were likely to harm the reputation and morale of P.W.1.
On seeing the obscene message, P.W.1 discussed the matter with P.W.2 and P.W.3 and sought the help of the Accused over phone. P.W.1 and her parents issued a warning message in the name of PW 2 and PW 3 by creating an email ID viz, email@example.com and transmitted same to the yahoo groups. She sent warning messages to the persons, who sent responsive message in ExP.6 series. A copy of warning message was also sent to the Accused.
P.W.1 lodged a complaint on 14/2/2004 along with Ex.P1 at Cyber Crime Police. The complaint is Ex. P.4 P.W.12 who received the complaint directed P.W.4 to obtain header details and other particulars to find out the origination of the messages. P.W.4 went to Cyber Café at Kennath Lane, Egmore along with P.W. 1 she down loaded the message took print out by using the e-mail I.D. Parant2003@Yahoo.Co.in Ex.P.9-Ex.P.12. She extracted and stored the messages in Mo.2 floppies. Thereafter P.W.12 gave a requisition to the Hathway Cable and Data Com. Pvt. Ltd; under Ex.P.13, for which it gave a reply in Ex. P.14. P.W.12 also gave a requisition to Dishnet D.S.L. in Ex.P.13 and the reply given by Dishnet D.S.L is Ex.P.15. P.W.5 speaks about Ex.P.13 and Ex.P.14. P.W.6 speaks about Ex.P.15.P.W.12 also examined P.W.11 and obtained particulars in Ex. P.29 series and confirmed that the messages were originated from Mumbai. P.W.12- Investigation Officer registered F.I.R. Ex.P.34 on 20.2.04.
Thereafter, P.W.12 proceeded to Mumbai on 24.2.04, and arrested the Accused at Mumbai on 25.2.04. He seized Mo.1 Cell Phone from the Accused under Mahazar Ex.P.8 P.W.8 and P.W.9 who are running browsing Centre at Mumbai, identified the Accused in the presence of P.W.12. He seized Ex.P.23, 24 registers from them. P.W.8 speaks about the Accused and the seizure of Ex.P.22 and the remarks made by P.W.12 in Ex.P.23, P.W. 9 speaks about the Accused that he came to the browsing centre and signed in the Register Ex.P24 as R. Ex.P.25 is the word written by the Accused.
P. W. 12, brought the Accused to Chennai on 28.2.04, after producing the Accused before a Mumbai Court. The Accused gave a confession statement in the presence of P.W. 10 and he gave the password “an rose”. The said word is Ex.P.27.
The particulars stored in the SIM Card were taken print out in Ex.P. 28 series through S.M.S. Reader. P.W.12 went to the office of P.W.7 and took computer print out by using the password “an rose”. He issued the certificate in Ex.P.21. The computer print outs are Ex. P 16-P.20. P.W.12 completed investigation and laid charge sheet against the Accused of offences u/s 67 of I T Act and u/s 469,509 of IPC.
…this court is not inclined to accept the theory projected by the Accused that the obscene messages would have been created by P.W.1, P.W.2 and P.W.3 or by Jaichand Prajapathi. It is clear that the Accused himself has composed and posted the obscene messages from the browsing centre of P.W.8 and P.W.9. This Court holds that the prosecution has proved its charges against the accused beyond all reasonable doubt and hence the Accused is liable to be punished.
The Accused was heard regarding the question of sentence u/s 248 (2) Cr.P.C. The Accused pleaded for admonition. The Accused is not a lay man. He is educated and studied upto M.B.A. P.W.1 is holding a responsible post in a multinational Company at Chennai. The Accused has chosen to post the obscene message for the simple reason that she refused to marry him. He did not behave like an educated man. Only a family woman can realise the mental sufferings and pain if unknown persons contacted her through phone and e-mail and invited her to bed. The mental sufferings and humiliation undergone by the P.W.1 cannot be compensated in terms of money or by solacial words. It cannot be stated that the Accused had acted in a heat of passion. Two days repeatedly he had sent the obscene message—Computer system and browsing centre are meant for learning things and updating knowledge in various fields. The Accused has misused the same to take revenge on a sophisticated lady. Therefore, the Accused does not deserve leniency and is liable to be punished.
In the result, the Accused is found guilty of offences u/s 469,509 IPC, and u/s 67 of I.T. Act. and the Accused is convicted and is sentenced to undergo Rigorous imprisonment for 2 years u/s 469 IPC, and to pay a fine Rs.500/- i/d, to undergo simple imprisonment for 1 month and for the offence u/s 509 IPC, sentenced to undergo 1 year simple Imprisonment and to pay a fine of Rs.500/- i/d to undergo simple imprisonment for 1 month and for the offence u/s 67 of Information Technology Act 2000 to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.4,000/- i/d to undergo S.I. for 6 months. All sentences to run concurrently. The period undergone by the Accused will be set off u/s 428 Cr.P.C.
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU, AP High Court Crl.P.No.7207 OF 2009 19-04-2011
Google India Pvt. Ltd.,
1.The petitioner/A-2 is accused of offences punishable under Sections 120-B, 500, 501/34 I.P.C in C.C. No.679 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad along with another. The petitioner/A-2 is Google India Private Limited represented by its Managing Director (Sales and Operations). The 1st respondent/complainant is Visaka Industries Limited, Secunderabad represented by its authorised signatory who is its Deputy Manager- Legal. The complainant is engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala Krishna is a Co-ordinator "Ban Asbestos India" a group which is hosted by A-2 and publishes regular articles in the said group and that on 21.11.2008 an article was published in the said group and it was captioned as "poisoning the system; Hindustan Times" aiming at a single manufacturer of Asbestos cement products viz., the complainant and names of renowned politicians of the country G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or management of the complainant-company were named in that article. It is further alleged that on 31.07.2008 another article captioned as "Visaka Asbestos Industries making gains" and that both the above articles contained defamatory statements against the complainant and they are available in Cyber space in the form of articles for world wide audience. In the complaint, details of defamatory remarks made in several other articles published by A-1 in A-2 group are given in detail, which details may not be necessary for the purpose of disposal of this criminal petition.
2) It is contended by the senior counsel appearing for the petitioner/A-2 that actions of intermediaries such as Google Inc., which is a service provider providing platform for end users to upload content, does not amount to publication in law and consequently the question of holding such intermediaries liable for defamation does not arise. Senior Counsel appearing for the petitioner placed reliance on Section 79 of the Information Technology Act, 2000 (in short, the Act) in support of this contention.
3) Section 79 which occurs in Chapter XII of the Act originally as it stood enacted in the year 2000 reads as follows:
"CHAPTER XII NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES
Sec.79. Network service providers not to be liable in certain cases: For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Explanation. For the purposes of this section,
The said provision exempts network service providers from liability under the Act, rules or regulations made thereunder for any third party information or data made available by him. It did not exempt a network service provider from liability muchless criminal liability for the offences under other laws or more particularly under the Indian Penal Code. Further, the above provision exempts network service provider from liability, only on proof that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Proof in that regard can be let in by way of leading evidence by the accused. Therefore, the said question is a question of fact which this Court may not go into in this petition filed under Section 482 Cr.P.C.
4) Chapter XII of the Act including Section 79 was amended by the Information Technology (Amendment) Act, 2008 (10 of 2009) dated 05.02.2009 with effect from 27.10.2009 by way of substituting the following in the place of original chapter:
"CHAPTER XII INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES
79. Exemption from liability of intermediary in certain cases:
(2) The provisions of sub-section (1) shall apply if- (a) the functions of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(3) The provisions of Sub-section(1) shall not apply if-
(b) upon receiving actual knowledge, or on being notified by information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.- For the purposes of this section, the expression "third party information" means any information dealt with an intermediary in his capacity as an intermediary."
It is only under the said amendment, non-obstenti clause was incorporated in Section 79 keeping application of other laws outside the purview in a fact situation covered by the said provision. Now, after the amendment, an intermediary like a network service provider can claim exemption from application of any other law in respect of any third party information, data or communication link made available or hosted by him; provided he satisfied the requirements under Sub-section (2) of Section 79. Further, as per amended Sub- section (3) of Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot be claimed by any intermediary in case the intermediary entered into any conspiracy in respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof. In the case on hand, in spite of the 1st respondent issuing notice bringing the petitioner about dissemination of defamatory material and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009. The present case in the lower Court was instituted in January, 2009 relating to the offences which are being perpetrated from 31.07.2009 onwards i.e., since long prior to the amendment to the said provision.
5) There is no exemption of any criminal liability in respect of a company which is a juristic person and which has no body that can be damned or contemned. In case found guilty, the petitioner company can be awarded with appropriate punishment though not corporal punishment. In that view of the matter, I find no merit in this criminal petition.
6) Accordingly, the Criminal Petition is dismissed.
12. Microsoft Corporation v Yogesh Papat, Delhi HC.
Facts of the case:-
This case concerns the infringement of copyright in software and notably the interpretation of Sections 51 and 55 of the Copyright Act 1957. The Microsoft Corporation, the registered proprietor of the trademark MICROSOFT, requested a permanent injunction restraining the defendant, its directors and agents from copying, selling, offering for sale, distributing or issuing to the public counterfeit or unlicensed versions of Microsoft's software program in any manner that amounts to infringement of Microsoft's copyright in the computer programs, related manuals and Microsoft's registered trademarks. Microsoft also requested that the defendant be prevented from selling and distributing any product to which the trademark MICROSOFT or any variants of this trademark have been applied.
The defendant did not appear before the court, so the proceedings took place ex parte. The court eventually ruled against the defendant, who was downloading Microsoft software onto the hard drives of computers that it then sold, without a licence or permission to do so from Microsoft.
The court approached each piece of evidence in turn and, based on the assumption that 100 computers were sold each year and on the evidence of the software's popularity, held that Microsoft had suffered a total profit loss of Rs1.98 million, plus interest at 9% from the date of the decree until the date of payment.
The court, quoting an observation by Justice Laddie in the High Court of England and Wales in Microsoft Corporation v Electrowide Ltd, held that the defendant's actions "constituted a general threat to infringe the copyright in the class of software". Justice Predeep Nandrajog, who presided in this case, stated that:
"It stands established that the defendant has infringed the plaintiff's copyright by making illicit copies of the operating systems software by openly copying whatever operating system is currently saleable."
13. Autodesk, Inc. & Another vs Mr. Prashant Deshmukh & Others.
Facts of the case:
Autodesk, Inc. (hereinafter “Plaintiff 1”) is a renowned U.S.-based design software and digital content company, providing design software to professionals, has several authorized resellers in India and also claims to be the owner of various trademarks in India, including AUTODESK and AutoCAD. Microsoft Corporation, (hereinafter “Plaintiff 2”) owns software such as Microsoft Windows and Microsoft Office and is almost a household name regarding computer peripherals. It also has a subsidiary company in New Delhi. The plaintiffs claim that the software developed and marketed by them are computer programs as per Section 2(ffc) of the Copyright Act, 1957 and also covered as ‘literary work’ as per Section 2(o) of the Copyright Act. Moreover, the rights of authors of member countries of the Berne and Universal Copyright Conventions are protected under Indian Copyright laws since both India as well as U.S.A. are signatory to both these conventions. Based on information regarding large-scale use of unlicensed/pirated software by the defendants, plaintiffs have alleged infringement of their copyright and trademark rights by the defendants.
Whether the defendants are guilty of having infringed the copyright and trademark right associated with the software that belong to the plaintiffs?
Injunction restraining the defendants from infringing the plaintiffs’ copyright and registered trademarks, damages of Rs.20 lakhs and rendition of accounts and delivery up of the unlicensed/pirated software contained in hard disks, compact disks, floppies etc.
The defendants never tried to contest the suit by filing a written statement. Evidence revealed that defendants 1 and 2 were not holding any license from Plaintiff 1, while defendant 3 (M/s Space Designers Syndicate) was a licensed user of AutoCAD LT 2005. Mr. Devesh J. Tiwari, the person who had informed the plaintiffs of the infringement, was an employee of M&S Consultancy Services (one of the defendants) as a computer service engineer. He revealed in the court that his employer company did not possess any legal licensed software and that his superiors were fully aware of the pirated software, including the Microsoft Windows 95/98 Operating System; Microsoft Office 97/2000 and AutoCAD Versions 12, 14 and 2000 etc. being used from printed CDs within the company. It was also contended on the plaintiff’s behalf that the word Microsoft has been continuously and extensively used by Plaintiff 2 since long and has come to be identified and recognized exclusively with Plaintiff 2.
With regard to applicability of the Act to work first published in any territory outside India such as U.S., the court referred to Section 40 of the Act and also to paragraphs 2 and 3 of the International Copyright Order 1999 and held the provisions of the Act, especially S. 51 (dealing with infringement in the absence of a license), to be applicable vis-à-vis the rights associated with defendants’ products in this case. Moreover, as per S. 14 of the Act, the court believed that by using pirated versions of the software copyrighted by the plaintiffs, the defendants were certainly guilty of infringement, besides having also caused trademark infringement.
Regarding the issue of punitive damages in matters of piracy and infringement, reference was made to precedents such as Time Incorporated v. Lokesh Srivastava & Anr., 2005 (30) PTC 3 (Del), Hero Honda Motors Ltd. v. Shree Assuramji Scooters, 2006 (32) PTC 117 (Del), Microsoft Corporation v. Deepak Raval MIPR 2007 (1) 72, and Larsen and Toubro Limited v. Chagan Bhai Patel MIPR 2009 (1) 194, all of which favor the awarding of punitive damages for dissuading the infringers, even if the infringers decide not to appear in the suit proceedings at all. It was also argued that given the energy and resources spent by right-holders in infringement litigation, failure to award punitive damages would only foment encouragement for actions such as infringement and passing off.
The court also voiced concerns about increasing instances of piracy of software of reputed companies such as Microsoft and AutoCAD in the country, which might cause discouragement amongst the investors in the development of such software in the lack of dwindling license fees. Furthermore, the use of pirated software for commercial rather than personal purposes should, according to the court, be more heavily frowned upon, and therefore the court awarded the plaintiffs the permanent injunction sought for as also punitive damages amounting to Rs. 1 lakh against Defendant No. 2.
14. TRAVEL.INDIATIMES Vs. INDIATIMESTRAVEL –CYBER SQUATTING
The fact situation in the Delhi High Court judgment in Times Internet v. M/s Belize Domian Whois Service Ltd & Others is a instance of cyber squatting. The judgment reaffirms the domain name-trademark / passing off principle. Contrary to oktatabyebye.com dispute where WIPO ruled in favour of Tata sons requiring Gurgaon-based travel portal MakeMyTrip to transfer the domain oktatabyebye.com to Tata, passing off in the instant case is evident.
Facts of the case:
Indiatimes.com is an e-commerce portal owned by the plaintiff company, Times Internet. Since 2000, the website offers a wide range of services including travel services through travel.indiatimes.com. The defendant, M/s Belize Domain Whois Service Ltd & Others, registered Indiatimestravel.com in 2005. It carries some sponsored links.
Arguing that “indiatimestravel.com” is deceptively similar to that of platintiff's registered domain name "travel.indiatimes.com", plaintiff submitted that the defendant was trying to take advantage of its brand name. The plaintiff, citing revenue figures, submitted that its website enjoys reputation and signifies the services and products marketed through the website. The plaintiff sought for an injunction restraining the defendants from cyber squatting, using any other identical or deceptively similar name and transferring the domain name “indiatimestravel.com” to the plaintiff.
The Court referred to the Supreme Court judgment in Satyam Infoway Ltd. vs. Sifynet Solutions Pvt. Ltd. 2004 (28) PTC 566 (SC) which had a similar fact situation. In the instant case, Supreme Court observed that “a domain name .......is chosen as an instrument of commercial enterprise not only because it facilitates the ability of consumers to navigate the Internet to find websites they are looking for, but also at the same time, serves to identify and distinguish the business itself, or its goods or services, and to specify its corresponding online Internet location. Consequently a domain name as an address must, of necessity, be peculiar and unique and where a domain name is used in connection with a business, the value of maintaining an exclusive identity becomes critical.” Comparing both the domain name and the trademark, Supreme Court held that a domain name can have all the characteristics of a trademark. Accordingly, domain names can be protected under Trademarks Act, 1999.
In the instant case, the High Court observed that the plaintiff owned the mark “indiatimes.com” way before the defendant created the mark “indiatimestravel.com”. Further, “indiatimes” which was the essential component of the domain name, was used by the defendant without any explanation. This can confuse an ordinary netizen and can result in associating defendant's portal with that of the plaintiff company. The use of impugned web portal by the defendant may also jeopardise the reputation of the plaintiff if the products and services which are advertised through the website lack quality. Further, as the defendant did not appear before the Court and contest the claims of the plaintiff, defendant's conduct was held to be in mala fide. Considering the above mentioned aspects, the instant dispute was held to be a clear case of “passing off”. As the plaintiff was held to have the sole right to use the words “indiatimes”, defendant was directed to transfer “indiatimestravel.com” to plaintiff.
Case I. Cubby, Inc v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y.1991)
Where CompuServe is an online company providing access to over 150 special interest forums comprised of electronic bulletin boards, interactive online conferences, and topical databases. A newsletter called Rumorville was made available via the bulletin board. The plaintiff sued CompuServe for libel after allegedly defamatory statements were disseminated through the newsletter against it. Cubby argued that the court should consider CompuServe to be a "publisher" of the allegedly defamatory statements, and thus hold it liable for the statement.
The court held that CompuServe had "no more editorial control over such a publication than does a public library, bookstore, or newsstand". The court instead found CompuServe to be more akin to a "distributor" rather than a "publisher". Thus, because it was undisputed that CompuServe did not have knowledge of or reason to know of the allegedly defamatory statements made in the publication, especially given the large number of publications it carries and the speed with which publications are uploaded into its computer banks and made available to CompuServe subscribers, the court held that CompuServe could not be held liable to Cubby for the defamatory statements. The court noted that to impose on CompuServe the duty to examine every publication it carries for defamatory statements would "impose an undue burden on the free flow of information".
Case II. State Bank of India vs. Rizvi Exports Ltd, II (2003) BC 96
(DEBT RECOVERY APPELLATE TRIBUNAL, ALLAHABAD )
State Bank of India (SBI) (Appellants) had filed a case to recover money from some persons who had taken various loans from it Respondent: Rizvi Exports Ltd. As part of the evidence, SBI submitted printouts of statement of accounts maintained in SBI's computer systems.
The relevant certificates as mandated by the Bankers Books of Evidence Act (as amended by Information Technology Act) had not been attached to these printouts.
The Court held that these documents were not admissible as evidence Decided On: 01.10.2002
Case III. Groff v. America Online, Inc., 1998 WL 307001 (1998)
The plaintiff, an individual in Rhode Island who subscribed to America Online, sued the company in Rhode Island state court, alleging violations of state consumer protection legislation. The process of becoming a member of AOL includes a step in which the applicant must assent to AOL's terms of service by clicking an "I Agree" button. The terms of service "contains a forum-selection clause which expressly provides that virginia law and Virginia courts are the appropriate law and forum for the litigation between members and AOL." AOL moved to dismiss this suit from the Rhode Osland Superior Court for improper venue on the ground that a forum selection clause in the parties' contract mandated that the suit be brought in virginia, where AOL's base of operations was located. The court agreed, and dismissed the suit.
The court held that the plaintiff assented to AOL' s terms of service online by the click of an "I agree" button. The terms of service included a clause mandating that suits concerning the service be brought in Virginia. AOL customers must first click on an "I agree" button indicating assent to be bound by AOL's terms of service before they can use the service. This button first appears on a web page in which the user is offered a choice either to read, or simply agree to be bound by, AOL's terms of service. It also appears at the foot of the terms of service, where the user is offered the choice of clicking either an "I agree" or "I disagree" button, by which he accepts or rejects the terms of service. The court held that a valid contract existed, even if the plaintiff did not know of the forum selection clause:
"our Court..stated the general rule that a party who signs an instrument manifests his assent to it and cannot later complain that he did not read the instrument or that he did not understand its contents. Here, plaintiff effectively "signed" the agreement by clicking. "I agree" not once but twice. Under these circumstance, he should not be heard to complain that he did not see, read, etc. and is bound to the terms of his agreement."
Case IV. Diebold Systems Pvt Ltd v. The Commissioner of Commercial Taxes.,  144 STC 59 (Kar)
Section 2 of Information Technology Act, 2000
Facts of the case
Diebold Systems Pvt Ltd Appellants manufactures and supplies Automated Teller Machines (ATM). Diebold sought a clarification from the Advance Ruling Authority (ARA) in Karnataka on the rate of tax applicable under the Karnataka Sales Tax Act, 1957 on sale of Automated Teller Machines.
The majority view of the ARA was to classify ATMs as "computer terminals" liable for 4% basic tax as they would fall under Entry 20(ii)(b) of Part 'C' of Second Schedule to the Karnataka Sales Tax Act.
The Chairman of the ARA dissented from the majority view. In his opinion, ATMs would fit into the description of electronic goods, parts and accessories thereof. They would thus attract basic rate of tax of 12% and would fall under Entry 4 of Part 'E' of the Second Schedule to the KST Act.
The Commissioner of Commercial Taxes was of the view that the ARA ruling was erroneous and passed an order that ATMs cannot be classified as computer terminals. Findings of the court
1. The enlarged definition of "computers" in the Information Technology Act cannot be made use of interpreting an Entry under fiscal legislation.
2. An Automatic Teller Machine is an electronic device, which allows a bank's customer to make cash withdrawals, and check their account balances at any time without the need of human teller.
3. ATM is not a computer by itself and it is connected to a computer that performs the tasks requested by the person using ATM's. The computer is connected electronically to many ATM's that may be located from some distance from the computer.
Decision of the court Decided On: 31.01.2005
ATMs are not computers, but are electronic devices under the Karnataka Sales Tax Act, 1957.
Case V. Ritu Kohli Case
Summary of the case:
Case VI. Avnish Bajaj vs. State (N.C.T.) of Delhi, (2005) 3 Comp, LJ 364 ( Del), 116(2005)DLT427, 2005(79)DRJ576.
Facts of the case
Avnish Bajaj (Appellants), CEO of Baazee.com, an online auction website, was arrested for distributing cyber pornography. The charges stemmed from the fact that someone had sold copies of a pornographic CD through the Baazee.com website.
The court granted him bail in the case on .
Factors considered by the court were:
1.There was no prima facie evidence that Mr. Bajaj directly or indirectly published the pornography,
2.The actual obscene recording/clip could not be viewed on Baazee.com,
3.Mr. Bajaj was of Indian origin and had family ties in India.
History of the case:
Avnish Bajaj is the CEO of Baazee.com, a customer-to-customer website, which facilitates the online sale of property. Baazee.com receives commission from such sales and also generates revenue from advertisements carried on its web pages.
An obscene MMS clipping was listed for sale on Baazee.com on 27th November, 2004 in the name of "DPS Girl having fun". Some copies of the clipping were sold through Baazee.com and the seller received the money for the sale.
Avnish Bajaj was arrested under section 67 of the Information Technology Act, 2000 and his bail application was rejected by the trial court. He then approached the Delhi High Court for bail.
Issues raised by the Prosecution
1.The accused did not stop payment through banking channels after learning of the illegal nature of the transaction.
2.The item description "DPS Girl having fun" should have raised an alarm.
Issues raised by the Defence
1.Section 67 of the Information Technology Act relates to publication of obscene material. It does not relate to transmission of such material.
2.On coming to learn of the illegal character of the sale, remedial steps were taken within 38 hours, since the intervening period was a weekend.
Findings of the court
1.It has not been established from the evidence that any publication took place by the accused, directly or indirectly.
2.The actual obscene recording/clip could not be viewed on the portal of Baazee.com.
3.The sale consideration was not routed through the accused.
4.Prima facie Baazee.com had endeavored to plug the loophole.
5.The accused had actively participated in the investigations.
6.The nature of the alleged offence is such that the evidence has already crystallized and may even be tamper proof.
7.Even though the accused is a foreign citizen, he is of Indian origin with family roots in India.
8.The evidence that has been collected indicates only that the obscene material may have been unwittingly offered for sale on the website
9.The evidence that has been collected indicates that the heinous nature of the alleged crime may be attributable to some other person.
Decision of the court given on 21.12.2004
1. The court granted bail to Mr. Bajaj subject to furnishing two sureties of Rs. 1 lakh each.
2. The court ordered Mr. Bajaj to surrender his passport and not to leave India without the permission of the Court.
3. The court also ordered Mr. Bajaj to participate and assist in the investigation.
Case VII. State of Maharashtra v/s Anand Ashok Khare
This case related to the activities of the 23-year-old Telecom engineer Anand Ashok Khare from Mumbai who posed as the famous hacker Dr Neuker and made several attempts to hack the Mumbai police Cyber Cell website.
Case VIII. Firos vs. State of Kerala., AIR2006 Ker 279, 2006.
Facts of the case :
The Government of Kerala issued a notification u/s 70 of the Information Technology Act declaring the FRIENDS application software as a protected system.
The author of the application software filed a petition in the High Court against the said notification. He also challenged the constitutional validity of section 70 of the IT Act.
The Court upheld the validity of both, section 70 of the IT Act, as well as the notification issued by the Kerala Government.
Conclusions of the court given on 24.05.2006
1.There is no conflict between the provisions of Copyright Act and Section 70 of IT Act.
2. Section 70 of the IT Act is not unconstitutional.
3.While interpreting section 70 of the IT Act, a harmonious construction with Copyright Act is needed.
4.Section 70 of the IT Act is not against but subject to the provisions of the Copyright Act.
5.Government cannot unilaterally declare any system as "protected" other than "Government work" falling under section 2(k) of the Copyright Act on which Govt.'s copyright is recognized under Section 17(d) of the said Act.
CaseVIII A. State of Tamilnadu v/s Dr L. Prakash
State of Tamilnadu v/s Dr L. Prakash was the landmark case in which Dr L. Prakash was sentenced to life imprisonment in a case pertaining to online obscenity. This case was also landmark in a variety of ways since it demonstrated the resolve of the law enforcement and the judiciary not to let off the hook one of the very educated and sophisticated professionals of India.
Case IX. Benususan Restaurant Corp. v. King., 937 F.Supp. 295 (SDNY, 1996).
Facts of the Case :
Where a New York jazz club operator sued a Missouri club owner claiming trademark infringement, dilution and unfair competition over the use of the name "The Blue Note",. The defendant maintained a web site promoting his Missouri "Blue Note" club and providing a Missouri telephone number through which tickets to the club could be purchased.
The issue, as framed by the Federal District Court, was whether the existence of the web site, without more, was sufficient to vest the court with personal jurisdiction over the defendant under New York's long-arm statue.
The court held that it did not. The court considered whether the existence of the web site and telephone ordering information constituted an "offer to sell" the allegedly infringing "product" in New York, and concluded it was not. The court noted that, although the web site is available to any new Yorker with Internet access, it takes several affirmation steps to obtain access to this particular site, to utilize the information contained there, and to obtain a ticket to the defendant's club.
Case X. Ashcroft, Attorney General et al v. Free Speech Coalition, et al., No 00-795
Facts of the Case:
The US Supreme Court affirmed the judgment of the Court of Appeals for the Ninth Circuit that the prohibitions of Ss.2256(8)(B) and 2256(8)(D) are overboard and unconstitutional. Being part of the Child pornography prevention Act of 1996 (CPPA) S. 2256 (8)(B) bans a range of sexually explicit images, sometimes called "virtual child pornography," that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology and S.2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography.
Justice Kennedy opined:
"Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime. however, by itself does not justify laws suppressing protected speech..."
As a general principle, the First Amendment bars the government from dictating what see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children.
The Government submits ."that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." First Amendment freedom are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." (Decided on April 16, 2002)
Case XI. State v/s Amit Prasad
Summary of the case:
Case XII. R v. Graham Waddon., Southwark [Crown Court, 30/6/1999].
Facts of the Case :
The defendant was charged with numerous counts of publishing obscene articles contrary to S. 2(1) of UK's Obscene Publications Act 1959. The defendant had created pornographic images, which were illegal under the UK's Obscene Publications Act. He ran a series of sites based in the Us, hosting them on a US based Internet service provider. These images were accessible to anyone in the world via the Internet who became a subscriber by giving credit card details. He was charging UK customers 25 pounds a month for access. The subscriber was given a password and could log onto the various websites to obtain the images. It was submitted on behalf of the defendant that, because the Internet publication had necessarily occurred abroad, therefore the instant court did not have jurisdiction.
Hardy Christopher, J. held:
"Publishing an article under S. 1(3)(b) of the 1959 Act included data stored electronically and transmitted. To transmit simply meant to send from one place or person to another. In the instant case, an act of publication took place when the data was transmitted by the defendant or his agent to the service provider, and the publication or transmission was in effect still taking place when the data was received. both the sending and receiving took place within the jurisdiction of the court and it was irrelevant that the transmission may have left the jurisdiction in between the sending and receiving".
CaseXIII. Syed Asifuddin and Ors. V. The State of AP. & Anr., 2005CriLJ4314
Facts of the case :
Tata Indicom employees were arrested for manipulation of the electronic 32-bit number (ESN) programmed into cell phones that were exclusively franchised to Reliance Infocomm.
The court held that such manipulation amounted to tampering with computer source code as envisaged by section 65 of the Information Technology Act, 2000.
Reliance Infocomm launched a scheme under which a cell phone subscriber was given a digital handset worth Rs. 10,500/- as well as service bundle for 3 years with an initial payment of Rs. 3350/- and monthly outflow of Rs. 600/-. The subscriber was also provided a 1 year warranty and 3 year insurance on the handset.
The condition was that the handset was technologically locked so that it would only work with the Reliance Infocomm services. If the customer wanted to leave Reliance services, he would have to pay some charges including the true price of the handset. Since the handset was of a high quality, the market response to the scheme was phenomenal.
Unidentified persons contacted Reliance customers with an offer to change to a lower priced Tata Indicom scheme. As part of the deal, their phone would be technologically "unlocked" so that the exclusive Reliance handsets could be used for the Tata Indicom service.
Reliance officials came to know about this "unlocking" by Tata employees and lodged a First Information Report (FIR) under various provisions of the Indian Penal Code, Information Technology Act and the Copyright Act.
The police then raided some offices of Tata Indicom in Andhra Pradesh and arrested a few Tata Tele Services Limited officials for reprogramming the Reliance handsets.
These arrested persons approached the High Court requesting the court to quash the FIR on the grounds that their acts did not violate the said legal provisions.
Issues raised by the Defense in the case:.
1.It is always open for the subscriber to change from one service provider to the other service provider.
2.The subscriber who wants to change from Tata Indicom always takes his handset, to other service providers to get service connected and to give up Tata services.
3.The handsets brought to Tata by Reliance subscribers are capable of accommodating two separate lines and can be activated on principal assignment mobile ( NAM 1 or NAM 2). The mere activation of NAM 1 or NAM 2 by Tata in relation to a handset brought to it by a Reliance subscriber does not amount to any crime.
4.A telephone handset is neither a computer nor a computer system containing a computer programmed.
5.There is no law in force which requires the maintenance of "computer source code". Hence section 65 of the Information Technology Act does not apply.
1.As per section 2 of the Information Technology Act, any electronic, magnetic or optical device used for storage of information received through satellite, microwave or other communication media and the devices which are programmable and capable of retrieving any information by manipulations of electronic, magnetic or optical impulses is a computer which can be used as computer system in a computer network.
2.The instructions or programmed given to computer in a language known to the computer are not seen by the users of the computer/consumers of computer functions. This is known as source code in computer parlance.
3.A city can be divided into several cells. A person using a phone in one cell will be plugged to the central transmitter of the telecom provider. This central transmitter will receive the signals and then divert them to the relevant phones.
4.When the person moves from one cell to another cell in the same city, the system i.e., Mobile Telephone Switching Office (MTSO) automatically transfers signals from tower to tower.
5.All cell phone service providers have special codes dedicated to them and these are intended to identify the phone, the phone's owner and the service provider.
6.System Identification Code (SID) is a unique 5-digit number that is assigned to each carrier by the licensor. Every cell phone operator is required to obtain SID from the Government of India. SID is programmed into a phone when one purchases a service plan and has the phone activated.
7.Electronic Serial Number (ESN) is a unique 32-bit number programmed into the phone when it is manufactured by the instrument manufacturer. ESN is a permanent part of the phone.
8.Mobile Identification Number (MIN) is a 10-digit number derived from cell phone number given to a subscriber. MIN is programmed into a phone when one purchases a service plan.
9.When the cell phone is switched on, it listens for a SID on the control channel, which is a special frequency used by the phone and base station to talk to one another about things like call set-up and channel changing.
10. If the phone cannot find any control channels to listen to, the cell phone displays "no service" message as it is out of range.
11. When cell phone receives SID, it compares it to the SID programmed into the phone and if these code numbers match, cell knows that it is communicating with its home system. Along with the SID, the phone also transmits registration request and MTSO which keeps track of the phone's location in a database, knows which cell phone you are using and gives a ring.
12. So as to match with the system of the cell phone provider, every cell phone contains a circuit board, which is the brain of the phone. It is a combination of several computer chips programmed to convert analog to digital and digital to analog conversion and translation of the outgoing audio signals and incoming signals.
13. This is a micro processor similar to the one generally used in the compact disk of a desktop computer. Without the circuit board, cell phone instrument cannot function.
14. When a Reliance customer opts for its services, the MIN and SID are programmed into the handset. If some one manipulates and alters ESN, handsets which are exclusively used by them become usable by other service providers like TATA Indicom.
Court Decided On: 29.07.2005
1.A cell phone is a computer as envisaged under the Information Technology Act.
2.ESN and SID come within the definition of "computer source code" under section 65 of the Information Technology Act.
3.When ESN is altered, the offence under Section 65 of Information Technology Act is attracted because every service provider has to maintain its own SID code and also give a customer specific number to each instrument used to avail the services provided.
4.Whether a cell phone operator is maintaining computer source code, is a matter of evidence.
5.In Section 65 of Information Technology Act the disjunctive word "or" is used in between the two phrases -
a. "when the computer source code is required to be kept"
b. "maintained by law for the time being in force"
Case XIV. Arif Azim case
Summary of the case:
Case XV. The Arzika case
Summary of the case:
Case XVI. The Air Force Bal Bharti School case
Summary of the case:
Case XVII. P.R. Transport Agency through its partner Sri Prabhakar Singh Vs. Union of India (UOI) through Secretary, Ministry of Coal, Bharat Coking Coal Ltd. through its Chairman, Chief Sales Manager Road Sales, Bharat Coking Coal Ltd. and Metal and Scrap Trading Corporation Ltd. (MSTC Ltd.) through its Chairman cum Managing Director., Writ Petition No. 58468 of 2005
History of the case
Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different lots.
P.R. Transport Agency's (PRTA) bid was accepted for 4000 metric tons of coal from Dobari Colliery.
The acceptance letter was issued on 19th July 2005 by e-mail to PRTA's e-mail address. Acting upon this acceptance, PRTA deposited the full amount of Rs. 81.12 lakh through a cheque in favour of BCC. This cheque was accepted and encashed by BCC.
BCC did not deliver the coal to PRTA. Instead it e-mailed PRTA saying that the sale as well as the e-auction in favour of PRTA stood cancelled "due to some technical and unavoidable reasons".
The only reason for this cancellation was that there was some other person whose bid for the same coal was slightly higher than that of PRTA. Due to some flaw in the computer or its programmed or feeding of data the higher bid had not been considered earlier.
This communication was challenged by PRTA in the High Court of Allahabad. [Note: Allahabad is the state of Uttar Pradesh (UP)]
BCC objected to the "territorial jurisdiction" of the Court on the grounds that no part of the cause of action had arisen within U.P.
Issue raised by BCC
The High Court at Allahabad (in U.P.) had no jurisdiction as no part of the cause of action
had arisen within U.P.
Issues raised by PRTA
1. The communication of the acceptance of the tender was received by the petitioner by e-mail at Chandauli (U.P.). Hence the contract (from which the dispute arose) was completed at Chandauli (U.P). The completion of the contract is a part of the "cause of action'.
2.The place where the contract was completed by receipt of communication of acceptance is a place where 'part of cause of action' arises.
Observation by the court :
1.In reference to contracts made by telephone, telex or fax, the contract is complete when and where the acceptance is received. However, this principle can apply only where the transmitting terminal and the receiving terminal are at fixed points.
2.In case of e-mail, the data (in this case acceptance) can be transmitted from any where by the e-mail account holder. It goes to the memory of a 'server' which may be located anywhere and can be retrieved by the addressee account holder from anywhere in the world. Therefore, there is no fixed point either of transmission or of receipt.
3.Section 13(3) of the Information Technology Act has covered this difficulty of "no fixed point either of transmission or of receipt". According to this section "...an electronic record is deemed to be received at the place where the addressee has his place of business."
4.The acceptance of the tender will be deemed to be received by PRTA at the places where it has place of business. In this case it is Varanasi and Chandauli (both in U.P.)
Decision of the court Decided On: 24.09.2005
1. The acceptance was received by PRTA at Chandauli / Varanasi. The contract became complete by receipt of such acceptance.
2. Both these places are within the territorial jurisdiction of the High Court of Allahabad. Therefore, a part of the cause of action has arisen in U.P. and the court has territorial jurisdiction.
Case XVIII. Washington Post v. Total News., 97 CIF. 1190 (PKL).
History of the case:
Where the "totalnews.com" website used framing technology to set a news story from other website within the overall Total News frame by blocking banner advertisements and other distinguishing features.
The U.S. District Court Southern District of New York passed an order of settlement stating that "the defendants agree permanently to cease the practice of framing plaintiff's websites". Plaintiffs agree that Defendants may link from the Totalnewa.com website or any other website to nay plaintiff's website, provided that:
(a) Defendants may link to plaintiff's website only via hyperlinks consisting of the names of the linked sites in plain text, which may be highlighted;
(b) Defendants may not use on any website, as hyperlinks or in any other way, any of plaintiff's proprietary logos or other distinctive graphics, video or audio material, nor may defendants otherwise link in any manner reasonably likely to: (i) imply affiliation with, endorsement or sponsorship by any plaintiff; (ii)cause confusion, mistake or deception; (iii) dilute Plaintiff's marks; or (iv) otherwise violate state or federal law;
(c) Each plaintiff's agreement to permit linking by defendants remains revocable, on 15 business days notice, at each Plaintiff's sole discretion. Revocation by any plaintiff shall not affect any other terms and conditions set forth herein. If defendants refuse to cease linking upon notice, and any plaintiff brings an action to enforce its rights under this subparagraph, it shall be an affirmative defense that defendants conduct does not otherwise infringe or violate plaintiffs rights under any theory of any intellectual property, unfair competition or other law.