Delhi High Court - Orders
Hulm Entertainment Pvt Ltd & Ors vs Sbn Gaming Network Private Limited & Ors on 10 October, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~36
* IN THE 2 HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 718/2023
HULM ENTERTAINMENT PVT LTD & ORS. ..... Plaintiffs
Through: Mr. Rajiv Nayar, Mr. Sandeep
Sethi, Mr Chander M. Lall and Mr. Akhil
Sibal, Sr. Advocates with Mr. Sudeep
Chatterjee, Mr. Rohan Swarup, Ms. Tanya
Arora, Mr. Sanyam Suri, Mr. Abhinav
Bhalla, Ms. Yashi Agrawal and Ms. Riya
Kumar, Advs.
Versus
SBN GAMING NETWORK
PRIVATE LIMITED & ORS. ..... Defendants
Through: Mr. Raj Shekhar Rao, Sr. Adv.
with Mr. Subhash Bhutoria and Mr. Harshil
Wason, Advs. for D-1 to D-3
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 10.10.2023
CS(COMM) 718/2023
1. The plaintiffs, through their mobile application
EXCHANGE22, provide internet gaming facilities. The grievance of the plaintiffs is that Defendants 1 to 3 have infringed copyright of the plaintiffs in their "Buy/Sell" game. It is alleged that the "Player Stocks" game, of Defendants 1 to 3 is a copy of the "Buy/Sell" game of the plaintiffs. The plaint also refers to various features of the CS(COMM) 718/2023 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:03 application of the "Players Stocks" game of the defendants which, according to the plaintiffs, imitate or replicate certain features of "Buy/Sell" game of the plaintiffs which would indicate that the defendants' game is a copy of the plaintiffs' game and infringes the copyright of the plaintiffs therein.
2. Even as per the assertions in the plaint, Defendant 1 posted, on its social media channels, posts relating to the new "Players Stocks"
games and its features on 2 September 2023. The defendants are also stated to have started a new app "BALLE BAAZI", which was later renamed "SPORTS BAAZI", which included access to the "Players Stocks" game which, according to the plaintiffs, is identical to its EXCHANGE22 GAME and infringes the plaintiffs' copyright therein.
3. The plaintiffs are represented by a veritable phalanx of Senior Counsel, comprising Mr. Nayar, Mr. Sethi, Mr. Lall and Mr. Sibal. Having heard said learned Senior Counsel, it is clear that, though the plaint makes out a case deserving of consideration, a more detailed examination of the issue would have to be undertaken before the Court can arrive at even a prima facie finding that the essential features of the plaintiffs' game are replicated in the defendants' game. Besides, even as per the assertions in the plaint, the defendants launched their game on 2 September 2023.
4. A Division Bench of this Court has, in a recent decision in Dabur India Ltd. v. Emami Ltd.1, observed, in para 8 of the judgment, albeit in the context of trade marks that where the 1 FAO(OS)(COMM) 171/2023 CS(COMM) 718/2023 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:03 defendants have been using the impugned trademarks - in that case, the use was only for about two months before the suit was instituted - the Court should avoid passing any ad interim order without affording the defendant a chance to file a response to the interim application. This Court has been diligently following the said decision in various orders. No doubt, in cases where the Court is dealing with counterfeits, or spurious drugs, or where pre-eminent public interest not limited to the commercial interest of the plaintiff is involved, I have passed ad interim orders even ex parte. Para 8 of Dabur1 reads thus:
"8. Having conferred our thoughtful consideration on the rival submissions noticed above, we find that, undisputedly, the suit upon being presented on or about 02 August 2023 came up for consideration for the first time on 07 August 2023. The ad interim injunction came to be granted merely two days thereafter on 09 August 2023. Admittedly, and as per the plaintiffs / respondents own case, the product of the appellant / defendant had been introduced somewhere around May 2023. In our considered opinion, this fact alone warranted the appellants/defendants being accorded at least a rudimentary opportunity to oppose the application which sought grant of ad interim injunction."
(Emphasis supplied)
5. Having heard learned Senior Counsel for the parties, I am not of the opinion that the present case calls for any relaxation from the standard set by the Division Bench in para 8 of Dabur1. Though learned Senior Counsel have emphasized the fact that the Cricket World Cup is presently going on and that this is the season when their business flourishes, this case cannot be compared with, for example, a case in which the games are streamed by unauthorised players without authority. This is a case in which the plaintiffs are involved in the business of internet gaming. The mere fact that the present season CS(COMM) 718/2023 Page 3 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:04 may be more profitable for them in view of the ongoing Cricket World Cup season, does not mean that grant of an opportunity to the defendants to respond to the plaintiffs' application would result in any irreparable prejudice to them.
6. Learned Senior Counsel for the plaintiffs submit that the defendants had approached the plaintiffs for collaboration and that the said efforts did not fructify and that the defendants had developed an allegedly infringing app within a month thereafter. Notice was issued on 14 September 2023 and according to Mr. Lall, the entire defence of the defendants is set out in the reply thereto.
7. The issue, as already noted, would require a deeper examination. In view thereof, I am of the opinion that the defendants are entitled at least one opportunity to file a response before any interlocutory orders are passed.
8. In the circumstances, let the plaint be registered as a suit. Issue summons in the suit. Summons are accepted on behalf of Defendants 1 to 3 by Mr. Subhash Bhutoria. Let summons be issued to Defendant 4 by all means.
9. Written statement, accompanied by an affidavit of admission and denial of the documents filed by the plaintiffs be filed within 30 days with an advance copy to learned Counsel for the plaintiffs who may file a replication thereto, accompanied by affidavit of admission and denial of the documents filed by the defendants within 30 days thereof.
CS(COMM) 718/2023 Page 4 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:04
10. List before the learned Joint Registrar (Judicial) for completion of the pleadings, admission and denial of documents and marking of exhibits on 11 December 2023, whereafter the matter would be placed before the Court for a case management hearing and further proceedings.
CAV 531/202311. Since the Caveator has entered appearance, Caveat is discharged.
I.A. 19946/2023 (Order XXXIX Rules 1 and 2 of the CPC)
12. This is an application by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), seeking ex parte ad interim relief.
13. For the reasons stated hereinabove, I am of the opinion that the defendants are entitled to an opportunity to respond before interim orders are passed.
14. As such, issue notice. Notice is accepted on behalf of Defendants 1 to 3 by Mr. Subhash Bhutoria. Let notice be also issued to Defendant 4 by all means.
15. Reply positively be filed within two weeks i.e. on or before 24 October 2023 with an advance copy to learned Counsel for the plaintiffs who may file rejoinder thereto before 31 October 2023.
CS(COMM) 718/2023 Page 5 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:05
16. List this application for hearing and disposal in advance of other matters which are listed at the end of the board on 6 November 2023.
17. No extension of time for filing reply or rejoinder shall be granted.
18. Dasti.
I.A. 19947/2023 (exemption)
19. Subject to the plaintiffs filing legible copies of any dim or illegible documents within 30 days, exemption is granted for the present.
20. The application is disposed of.
I.A. 19948/2023 Section 12A of the Commercial Courts Act, 2015)
21. In view of the judgment of the Division Bench of this Court in Chandra Kishore Chaurasia v. R.A.Perfumery Works Pvt Ltd2, exemption is granted from the requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
22. The application stands allowed accordingly.
I.A. 19949/2023 (Order XI Rule 1(4) of the CPC) 2 2022 SCC OnLine Del 3529 CS(COMM) 718/2023 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:05
23. This application seeks permission to file additional documents. The plaintiffs are permitted to place additional documents on record in accordance with Order XI Rule 1(4) of the CPC as amended by the Commercial Courts Act within four weeks from today.
24. The application stands disposed of accordingly.
C.HARI SHANKAR, J OCTOBER 10, 2023 rb CS(COMM) 718/2023 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/10/2023 at 12:54:05