VIVENDI UNIVERSAL GAMES INC AND ANOTHER v. FULCRUM HOLDINGS LTD

DCCJ5379/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5379 OF 2003

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J U D G M E N T

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1. These are Order 14 proceedings in a copyright matter. The 1st Plaintiff is an internationally known American company which, amongst other things, manufactures and publishes entertainment software. The 2nd Plaintiff is its subsidiary that designs such games. The Defendant operates a cyber café in Wanchai and this matter concerns a game called War Craft III, the expansion version of it, which is called Frozen Throne, first created in the course of this year and first published on 24 June. There was an announcement as to the arrival of the game in a very well known publication, which is published in Hong Kong, specialising in such games.

2. There were negotiations between the 1st Plaintiff and the Defendant as to a licence under which the Defendant might be able to use this game on its computers. These negotiations came to nothing, I think, largely because the licence fee that was sought by the 1st Plaintiff was more than the Defendants were prepared to pay. The evidence shows that the Defendants have this game available on a number of their computers at their cyber café. I am abundantly satisfied as to that and indeed the Defendants accept that, their case being that these particular games must have been put there by customers of theirs and subsequently not deleted. I am bound to say that seems a highly unlikely state of affairs but, in any event, that perhaps does not matter. What matters is that these games are available and in use at the Defendant's premises.

3. Letters were addressed to the Defendants from the 1st Plaintiff's solicitors asking that this activity stop immediately. Nothing has come of that and, as a result, these proceedings have been brought. The summons itself is under Order 14 and the main relief sought is an injunction in common form in matters of this kind, the orders sought appear in paragraphs 1 to 3 of the summons.

4. There is also at paragraph 4, an application for an enquiry as to damages. Alternatively an account of profits and also paragraph 5, a claim for interest, no doubt consequent upon the enquiry. Sensibly, in my view, the Plaintiffs no longer pursue that and they have restricted themselves to the claim for the injunction and the consequential orders which appear in paragraphs 2 and 3 of the summons.

5. I have absolutely no doubt that there can be no defence whatsoever to this claim on the evidence as filed in court and I am going to make the order sought in terms of subparagraphs (i) to (v). Subparagraph (vi) seeks an injunction in a rather general way preventing infringement of the Plaintiff's copyright "in any other manner". That is far too general and, in any event, Mr Leung who appears for the Plaintiffs has very sensibly indicated that he is not asking for an order under (vi). So there will be an order in terms of paragraph 1, subparagraphs (i) to (v) and also paragraph 2 of the summons, an order for the delivery up of the infringing copies that are in the Defendant's possession, power, custody or control. Then in terms of paragraph 3 an order that all infringing copies delivered up pursuant to paragraph 2 be forfeited to the Plaintiffs. That paragraph is pleaded in the alternative, "that they be destroyed or otherwise dealt with as the court shall think fit". That is unnecessary. Once they are forfeited to the Plaintiffs, the Plaintiffs can do what they wish to with those copies.

6. Lastly, paragraph 6, in view of the fact that the Plaintiffs have succeeded, I would have thought inevitably they must have their costs of this action to be taxed on a party and party basis, together with certificate of counsel.