Commercial Court Division
several of their songs in their systems and offered them for sale as
caller tunes to their customers who were holders of hand sets.
Because of the foregoing, the Plaintiff’s music depreciated and they
suffered loss; thus this suit.
The Defendant, at first denying liability, claimed that they had not
infringed the intellectual property rights of the Plaintiff because they
obtained them lawfully. It was the Defendant’s contention that they
had entered into a contract with DMark Co. Ltd which provided the
musical works as theirs. They relied on Annexture ‘B’ which was the
agreement for content provision entered into on 11 th August 2008
between Warid Telecom (U) Ltd and DMark Co. Ltd.
Under the
agreement, DMark had warranted to the Defendant that it had the
legal right and capacity to deal with the intellectual property content
the way it did. DMark did not deny that it provided the artistic work
to the Defendant.
The Defendant therefore contended that in the
event of being found liable to the Plaintiff, they would be entitled to
compensation from DMark.
DMark, hereinafter called the Third Party disputed the Plaintiff’s claim
and stated that the ownership of the intellectual property by the
Plaintiff was in question.
The issues that arose for determination by the Court were 4 namely;
1. Whether the Plaintiff is the owner or assignee of the copyright?
2. Whether the Defendant infringed on the Plaintiff’s copyright?
3. Whether the Plaintiff is entitled to any remedies?
4. Whether the Defendant is entitled to be indemnified by the 3rd party?
HCT - 00 - CC - CS - 373- 2010
/2