JUDGMENT : G.S. Patel, J. The Plaintiff, Phonologies (India) Pvt. Ltd. ("Phonologies") and the Defendants 1 and 2, Avaya Inc. and Avaya (India) Pvt. Ltd. (together, "Avaya") provide telecommunication solutions. The other Defendants, Redington (India) Ltd. ("Redington") and Datacom Products India Pvt. Ltd. ("Datacom") are distributors and resellers for Avaya. Phonologies, suit is for a permanent injunction restraining Avaya from infringing its copyright in the software "Updated Oktopous ccXML Interpreter PIK Version 1.1 developed for the operating system Red Hat Linux AS 5.0 and CentOS 5.0 on Intel 32- bit" ("Updated Oktopous 1.1") in Avaya's telecommunication solutions "Avaya Voice Portal 5.0", "Avaya Aura Experience Portal 6.0" and/or, "Avaya Aura Experience Portal 7.0" ("Avaya Solutions"). Phonologies also seeks damages of Rs. 120 crores for the infringement alleged. The Notice of Motion is for a temporary injunction in similar terms. 2. Phonologies developed a software titled Oktopous ccXML Interpreter PIK Version 1.0 ("Oktopous 1.0") for telecommunications solutions and released it under an unrestricted open source public license it called the "Phonologies Public License Software Version 1.0" on the Source Forge website. Phonologies later enhanced or upgraded Oktopous 1.0 to Oktopous ccXML Interpreter PIK Version 1.1 ("Oktopous 1.1"). Under an Agreement dated 13th September 2006 ("the First Agreement") Phonologies licensed Oktopous 1.1 to Avaya for use and integration into Avaya's own telecommunication software solutions. The First Agreement had a no- fault termination clause that allowed Phonologies to terminate the agreement with 30 days' prior notice. Phonologies invoked this clause in 2010, and the First Agreement was terminated. This is alleged to have been done for the sole purpose of re-negotiating terms and subsequently re-licensing the software to Avaya, but that is a matter of no moment for our purposes in this application. 3. On 26th May 2010, Phonologies and Avaya executed a re negotiated Agreement ("the Agreement"; copy, Exhibit "A" to the Plaint) licensing the upgraded software Oktopous 1.1 to Avaya for a lump sum US$ 65,000. It remained in place till 8th September 2012 when Phonologies terminated it (this Agreement did not have a no- fault termination clause). I will turn to the details of this Agreement and the correspondence that led to its termination later. For the present, it is necessary to note the submission of Mr. It remained in place till 8th September 2012 when Phonologies terminated it (this Agreement did not have a no- fault termination clause). I will turn to the details of this Agreement and the correspondence that led to its termination later. For the present, it is necessary to note the submission of Mr. Kane, learned advocate for the Plaintiffs: that Oktopous being said in the Agreement to have been developed for a particular Operating System ("OS") platform and, indeed, a particular version of that OS, Avaya was not entitled to use Oktopous on any other OS platform or even any other version of the defined OS. Any such use was a breach. Oktopous was licensed for use only on Red Hat Linux AS 5.0/CentOS 5.0 on Intel 32-bit; Avaya, Phonologies learned in early 2012, was using it for product development (of Avaya's own software) on the Windows platform and, later, for subsequent versions of Linux or CentOS. That constituted a breach justifying the termination; and once Phonologies had terminated the Agreement, every day's use thereafter was a continued infringement of its copyright by Avaya. 4. Mr. Kane draws attention to the email correspondence between 7th February 2012 and 22nd March 2012 (Exhibits "B-1" to "B-8" to the plaint) to suggest that as soon as Phonologies learned of Avaya's proposed development on the Windows platform, it protested saying "if there was a planned Windows release or requirement, Phonologies should have been made aware as the Licensor of Oktopous". Avaya contested this assertion. It said, for instance, in its email of 15th February 2012 that Oktopous was only developed for a particular OS or on a given platform. The Agreement contained no restrictions on its use on other platforms. 5. On 8th August 2012, Phonologies gave Avaya a cure notice under clause 9.1 of the Agreement. Alleging non-compliance, it terminated the Agreement by its letter dated 8th September 2012. 6. What is it exactly that was licensed to Avaya under the Agreement? Mr. Kane contends that the answer to this is to be found in Attachment "A", "Product Detailed Description", read with clause 5 and the definitions. This, he submits, clearly indicates that the only license granted to Avaya was: "OktopousTM ccXML Interpreter PIK Ver. 1.1 (and any Upgrades) is an abstract, C, C++ based implementation of the working draft ccXML 1.0 Specifications published by W3C on 19 January 2007. This, he submits, clearly indicates that the only license granted to Avaya was: "OktopousTM ccXML Interpreter PIK Ver. 1.1 (and any Upgrades) is an abstract, C, C++ based implementation of the working draft ccXML 1.0 Specifications published by W3C on 19 January 2007. OktopousTM ccXML Interpreter PIK Ver. 1.1 is independent of the underlying telephony platform and protocols. The implementation is a "lightweight" toolkit that needs to be integrated with a telephony platform or API that is intended to implement ccXML functionality. Oktopous ccXML Interpreter PIK Ver. 1.1 is developed for Red Hat Linux AS 5.0/CentOS 5.0 on Intel-32 bit." (emphasis supplied) The portion highlighted above is, Mr. Kane says, a term of limitation or restriction to the generality of Clause 5.1: 5.1. Subject to Avaya's payment of the Product and Software License Fee pursuant to Section 6.1(a), Supplier hereby grants Avaya and its Affiliates and Resellers a non-exclusive, non-royalty bearing, irrevocable and perpetual (except as provided in Section 9.1) worldwide, non-transferable (except in circumstances where Avaya's rights and obligations under this Agreement are transferred pursuant to Section 15.3 (Assignment)) license under Supplier's Intellectual Property Rights to market, distribute and sublicense the Product in object code format only to End Users, exclusively as integrated into Avaya Solutions, and to provide support and other services to End Users, all in accordance with this Agreement. This license grant shall include the right of" Avaya, its Affiliates and Resellers to (a) demonstrate the Product to prospective End Users and (b) grant evaluation licenses to prospective End Users, provided in the case of (b) that the prospective End Users have a written evaluation agreement equally as protective of the Product as this Agreement and the term of any such evaluation license does not exceed 60 days. The license granted shall also include the right of Avaya to reproduce the Product as part of its manufacture of Avaya Solutions and to otherwise copy the Product as Avaya sees fit to fulfill the license granted herein and to meet Avaya's, its Affiliates' and Resellers' obligations to End Users. (emphasis supplied) 7. The words of Clause 5.1 of the Agreement do not, prima-facie, indicate any such restriction. On the contrary, they reflect the intention of the parties that Avaya would have an irrevocable and perpetual license (subject to termination of the Agreement) to use the licensed Oktopous 1.1 software, including Avaya's own software products. (emphasis supplied) 7. The words of Clause 5.1 of the Agreement do not, prima-facie, indicate any such restriction. On the contrary, they reflect the intention of the parties that Avaya would have an irrevocable and perpetual license (subject to termination of the Agreement) to use the licensed Oktopous 1.1 software, including Avaya's own software products. This is even more evident when we consider certain other clauses of the Agreement including, in particular, clause 5.3 and some of the definitions: 5.3. Ownership and Restrictions.--Subject to the license granted in this Section 5 and the terms of this Agreement, Supplier owns all rights, title and interest in the Product and Deliverables. Except as expressly permitted in this Agreement, or otherwise reasonably required for Avaya to facilitate the licenses granted hereunder, or as permitted under Avaya's Intellectual Property Rights, or as required by operation of law, Avaya shall not (a) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Product; (b) create, implement or develop any Modifications, of the Product or Deliverables, except as may be necessary for (i) incorporating Product into Avaya Solutions or otherwise facilitating interpretability therewith, (ii) performing Avaya's support obligations to End Users (Hi) for any other purposes that may be mutually agreed by the parties in writing; (c) not remove, alter or obscure in any way any proprietary rights notices (including copyright notices) of Supplier (or its licensors) on or within the copies of the Product and the Deliverables. Avaya shall reproduce all proprietary rights notices on copies of Product and Deliverables (or any portion thereof). (emphasis supplied) 8. On the face of it, this means that while Phonologies continues to retain its proprietary rights in Oktopous 1.1, the irrevocable and perpetual license to Avaya includes the right, at a minimum, to create, implement or develop any Modifications, of the Product or Deliverables, as may be necessary for (i) incorporating Product into Avaya Solutions or otherwise facilitating interpretability therewith or (ii) performing Avaya's support obligations to End Users. Now the terms "Modifications", "Product", "Deliverables" and "Avaya Solutions": "Avaya Solution" shall mean any Avaya product(s) containing a telephony platform or API into which the Product will be integrated. Now the terms "Modifications", "Product", "Deliverables" and "Avaya Solutions": "Avaya Solution" shall mean any Avaya product(s) containing a telephony platform or API into which the Product will be integrated. "Deliverables" means the software (in object code format, except as specified below), documentation and other materials that Supplier will deliver to Avaya so that Avaya may integrate the Product into Avaya Solutions pursuant to the terms of Section 5. The Deliverables are as follows: The PIK, ccXML test scripts used by Supplier, 1 copy of Oktopous ccXML Interpreter PIK in source code format with Source Code Documentation, User Manual and PIK Integration Manual + User Manual describing Architecture, Annual Support and Maintenance Upgrades, provided pursuant to Section 11, Third party components - Spider Monkey (Mozilla's C implementation of Java Script), Apache Xerces (XML parser in C++), PCRE library (set of functions implementing regular expression pattern matching using the same syntax and semantics as Perl 5) and such other third party software as may be included in any Upgrades. "Modifications" means any and all additions, improvements, modifications, derivative works, design changes, and other modifications to the Deliverables which are individually or jointly developed by the Parties or any agent or subcontractor of either at any time during the Term or Renewal Term of this Agreement. "Product(s)M means Supplier's product known as Oktopous ccXML Interpreter Version 1.1, which Avaya will integrate into Avaya Solutions by use of the PIK. (See Attachment A for Product Detailed Description) "Software" means the source and object code format of the Product and PIK and all third party code components provided by Supplier to Avaya as Deliverables, including, but not limited to Spider Monkey (Mozilla's C implementation of Java Script), Apache Xerces (XML parser in C++), PRCE library (set of functions implementing regular expression pattern matching using the same syntax and semantics as Perl 5) and all Bug Fixes and Upgrades thereto. "Upgrades" means software (in source and object code format) code needed to give the Software or Product the enhancements necessary to keep it up-to-date with version 1.x of the ccXML specifications published by the W3C from time to time. 9. Read together, the product description and the various clauses of the Agreement do not suggest that there was an operating system-specific or version-specific restriction imposed on the license granted to Avaya. Mr. 9. Read together, the product description and the various clauses of the Agreement do not suggest that there was an operating system-specific or version-specific restriction imposed on the license granted to Avaya. Mr. Kane's submission that the product description confines the license to the use of Oktopous 1.1 on the Linux Red Hat AS 5.0/CentOS 5.0 is uncompelling. That phrase, the last line of the product description, is more correctly nothing more than a certificate of assurance that Oktopous 1.1 will definitely run on Linux Red Hat AS 5.0/CentOS 5.0. The reference to Intel 32-bit is a hardware specification. 10. What Mr. Kane's argument also overlooks is the relevant part of the "Technical Specifications", also part of Attachment A to the Agreement. "(c) Important Note: Oktopous ccXML Interpreter handles only the document interpretation. All the interaction with Media and Telephony Resources will be handled by the platform the Oktopous ccXML Interpreter PIKVer 1.1 is integrated with." (emphasis supplied) This can only mean that Oktopous Ver 1.1 was not restricted to use or integration on any particular OS platform or version. Oktopous and all its versions is a modular call control engine, fully implementing "the W3C Voice Browser ccXML Specification", http://www.phonologies.com/oktopous.php The World Wide Web Consortium (W3C) specified on 19th January 2007 a working draft of a "call control extensible Markup Language" or ccXML specification. A markup language is code designed for use in and on web-based applications and platforms. The XML specification is one such, and ccXML is a particularized specification designed to provide telephony call control support for dialog systems such as VoiceXML. Since platforms implementing ccXML may choose to use one of many telephony call control definitions, the call control model in ccXML has been designed to be sufficiently abstract so that it can accommodate all major definitions. www.w3.org/TR/ccxml/This information suggests that Oktopous is a tool used and licensed in the Agreement conforming to the W3C standard for use by Avaya in the development of 'Avaya Solutions'. 11. Mr. Kane next submits that since the license has been terminated, any continued use by Avaya is an infringement of Phonologies' copyright, on principles analogous to trade mark law. He relies on several decisions in this regard. Morgardshammar India Limited and Others Vs. Morgardshammar AB, (2012) 193 DLT 238 ; J. Thomas McCarthy, Trademarks and Unfair Competition, Vol. 2, 1973, The Lawyers Cooperative Publishing Co, Rochester. He relies on several decisions in this regard. Morgardshammar India Limited and Others Vs. Morgardshammar AB, (2012) 193 DLT 238 ; J. Thomas McCarthy, Trademarks and Unfair Competition, Vol. 2, 1973, The Lawyers Cooperative Publishing Co, Rochester. Therefore, he submits, Avaya's only remedy, faced with a termination, is in damages; an injunction must follow. As Mr. Kadam, learned Senior Advocate for the 1st and 2nd Defendant, correctly points out, this is an incorrect statement, and the analogy or parallel Mr. Kane tries to draw is altogether too strained. The very nature of trademark infringement is not authorship but a connection to the origin. There is a link in trademark cases between the proprietor of the mark, the goods in question and the manner in which they are sought to be used. A perpetual copyright license works altogether differently, especially in a case such as this, where the license permits the licensee to use the product for the creation of another work. 12. Finally, there is also the matter of delay. Phonologies waited for nearly two years before seeking reliefs from this court against Avaya. Mr. Kane submits that the parties were for some time in mediation and that, in any event, a delay is no defence to a claim for an injunction in an infringement action. Here, too, Mr. Kane cites decisions in trademark cases: Indchemie Health Specialities Pvt. Ltd., Mumbai Vs. Naxpar Labs Pvt. Ltd. and Another, (2002) 2 MhLj 513 , and Pepsi Foods Vs. Jai Drinks (P) Ltd., (1996) 36 DRJ 711 , as also Rajasthan Breweries Ltd. Vs. The Stroh Brewery Company, AIR 2000 Delhi 450, I am unable to see how either of the decisions in Pepsi Foods or Rajasthan Breweries is of the slightest assistance to Mr. Kane in this regard, or even in relation to his submission that an injunction in a case alleging a copyright infringement (as opposed to a trade mark infringement) must follow every termination. 13. The license granted to Avaya by Phonologies under the Agreement is, prima-facie, irrevocable and perpetual. The termination by Phonologies is, for the reasons I have discussed, though on a prima-facie evaluation, unjustified. In any case, that termination cannot operate in the way Mr. Kane suggests. Mr. 13. The license granted to Avaya by Phonologies under the Agreement is, prima-facie, irrevocable and perpetual. The termination by Phonologies is, for the reasons I have discussed, though on a prima-facie evaluation, unjustified. In any case, that termination cannot operate in the way Mr. Kane suggests. Mr. Kadam is very likely correct in his submission that more than a matter of copyright violation, this is a case of 'seller's remorse' and the seller-plaintiff clutching at straws to somehow find a way to better his lot, having realized, a distance down the road after the licensing Agreement, that he might possibly have obtained a better price than he did. That is no reason to grant the plaintiff any injunctive relief. The Notice of Motion is dismissed, but so as to not add to the plaintiffs woes, with no order as to costs.