Delhi High Court - Orders
Winzo Games Private Limited vs Https//Vinzogame.Com & Anr on 20 December, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 918/2023, I.As. 25750/2023, 25751/2023, 25752/2023,
25753/2023, 25754/2023
WINZO GAMES PRIVATE LIMITED ..... Plaintiff
Through: Mr. Abhishek Malhotra, Ms.
Anukriti Trivedi, Mr. Kartikay Dutta,
Advs. (M. 8979516789)
versus
HTTPS//VINZOGAME.COM & ANR. ..... Defendants
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 20.12.2023
1. This hearing has been done through hybrid mode.
I.A. 25751/2023 (for exemption)
2. This is an application filed by the Plaintiff seeking exemption from filing originals/certified/cleared/typed or translated copies of documents, proper margins, electronic documents, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act') and the DHC (Original Side) Rules, 2018.
3. Exemption is allowed, subject to all just exceptions. Accordingly, application is disposed of.
I.A. 25752/2023 (for additional documents)
4. This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015. The Plaintiff, if it wishes to file additional CS(COMM) 918/2023 Page 1 of 10 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 23/12/2023 at 01:12:56 documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
5. Application is disposed of.
I.A. 25754/2023 (u/S 12A)
6. This is an application filed by the Plaintiff seeking exemption instituting pre-litigation mediation under Section 12A of the Commercial Courts Act.
7. Considering the facts and circumstances of the case, the Court is satisfied that in terms of the judgment of the Hon'ble Supreme Court in Yamini Manohar v. T.K.D Keerthi, (2023 LiveLaw (SC) 906), that the present suit contemplates urgent interim relief.
8. Accordingly, the exemption is allowed and application is disposed of. I.A. 25753/2023 (for court fees)
9. This is an application for extension of time to file a Court fee. Let the Court fee be deposited within one week. Injunction be issued subject to deposit of the court fee.
10. Application is disposed of.
CS(COMM) 918/2023
11. Let the plaint be registered as a suit.
12. Issue summons to the Defendants through all modes upon filing of Process Fee.
13. The summons to the Defendants shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an CS(COMM) 918/2023 Page 2 of 10 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 23/12/2023 at 01:12:56 affidavit of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
14. Liberty is given to the Plaintiff to file the replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
15. List before the Joint Registrar for marking of exhibits on 13th February, 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
16. List before Court on 17th May, 2024.
I.A. 25750/2023 (u/O XXXIX Rules 1 & 2 CPC)
17. Issue notice in the application.
18. The Plaintiff is a digital gaming and technology company founded in 2016, with its registered office in New Delhi. It operates a popular online skill- based gaming and entertainment platform under the registered trade mark and brand name 'WinZO/WINZO'. Launched in February 2017, as per the Plaintiff, the platform has garnered over 100 million users, particularly in tier-2 cities and rural India. It is stated that Plaintiff's platform WinZO is only available for and caters to users who are above 18 years of age, per its terms and conditions. WinZO is available only in those Indian states where skill gaming is allowed by statutory regulations. It claims to be the largest social gaming app in India in terms of the variety of games, vernacular languages and format of games CS(COMM) 918/2023 Page 3 of 10 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 23/12/2023 at 01:12:56 formats offered. The Plaintiff claims to have active users, who spend an average of 55 minutes per day on the platform, along with 3.5 billion microtransactions and over 1 billion monthly gameplays.
19. As per the plaint, the mark 'WinZO/WINZO' was conceived and adopted by the Plaintiff in 2017. It is an innovative and distinctive combination of the words 'Win' and 'ZO' (signifying speed and energy), and it represents the essence of the games available on the platform. The Plaintiff claims that goods and services under the said marks have gained immense popularity, goodwill, and reputation.
20. The Plaintiff has various registered several marks, some of which were initially in the name of a former director, but have since been assigned to the Plaintiff through an assignment deed dated 5th April, 2019. The Plaintiff has shown a steady increase in annual revenue from 2016-17 to 2021-22, indicating the growing popularity of its services under the trade marks. For the financial year 2022-23, the annual revenue was more than Rs. 673 crores.
21. Further, extensive marketing and advertising efforts have been made to promote the Plaintiff's goods and services bearing Plaintiff's 'WINZO' marks. The said marks have been endorsed by celebrities like cricketer Akash Chopra, actor Sanjay Mishra, Kritika Kamra, Nikhil Chinappa, and Indian cricketer M.S. Dhoni. Collaborations include a nationwide TV commercial with actor Ranveer Singh for the movie '83'. For the year 2022-23, the Plaintiff claims to have expended more than Rs. 257 crores on advertisement expenditure.
22. It is further averred that the Plaintiff was also a sponsor and participant at the Indian Game Developers Conference in November 2022. The significant CS(COMM) 918/2023 Page 4 of 10 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 23/12/2023 at 01:12:57 investment in promotional and marketing activities is evident from the annual advertisement expenditure, which has consistently increased over the years.
23. It is also stated that Plaintiff has an extensive presence through the world wide web as its business is largely operated through online media. Among others, Plaintiff owns the following domain names comprising the Trade Mark WinZO/WINZO as listed in paragraph 18 of the plaint.
24. The Plaintiff claims common law and statutory rights in respect of its marks. It claims to have applied for various marks, including marks 'WinZO' and 'WinZO Games', and other 'WINZO' formatives/variant marks in respect of mobile applications, online gaming, services relating to business administrations telecommunications services and design and development of hardware and software services falling under classes 9,35, 38, 41 & 42. The complete details of Plaintiff's resisted marks are provided in paragraph 10 of the Plaint. The details of some of the Plaintiff's 'WINZO' marks are extracted below:
CS(COMM) 918/2023 Page 5 of 10This 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 23/12/2023 at 01:12:57
25. The grievance of the Plaintiff in the present suit is that the Defendant- https://vinzogame.com has been registered by unknown persons through NameCheap Inc. which is a Domain Name Registrar (hereinafter, 'DNR'). According to the Plaintiff, on the said https://vinzogame.com website, the Defendant No.1 is offering gambling services as is evidenced from the screenshots below:-
CS(COMM) 918/2023 Page 6 of 10This 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 23/12/2023 at 01:12:57 CS(COMM) 918/2023 Page 7 of 10 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 23/12/2023 at 01:12:57
26. It is stated that Defendant No. 1 claims that it is a company, which provides betting services since 2020 and is gaining popularity due to having the highest odds on live games. It refers itself to as a bookmaker i.e., which is a bookie that accepts bets on live sporting events. Defendant No. 2 is an entity named 'Namecheap Inc', which appears to be an ICANN-accredited domain name registrar providing domain name registration based in Arizona, United States of America. Further investigation by the Plaintiff revealed that the infringing website was easily accessible in India through world wide web, and provides services for gambling and betting.
27. Further, a perusal of the Defendant No.1's website would show that though the actual location of the Defendant No. 1 is not available, and that the Defendant No. 1 is collecting money through various Apps which are available in India i.e., PhonePe, UPI, GPAY, IMPS etc., including seeking deposits in INR which is evidence from the following screenshots:-
CS(COMM) 918/2023 Page 8 of 10This 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 23/12/2023 at 01:12:57
28. The name "VinZOgame" and the mark "VinZO" used by the Defendants are almost phonetically and ocularly identical to Paintiff's mark 'WINZO'. Considering the reputation of the Plaintiff in the gaming industry, the use of the domain name or the website https://vinzogame.com would be not only violative of the Plaintiff's statutory and common law rights but also is likely to result in confusion amongst the internet users who may presume that Defendants to be connected to the Plaintiff. Moreover, the nature of the services that are being offered would also involve high monetary stakes and Defendants, therefore, are liable to be injuncted by an interim order.
29. In view of this position, there is a serious possibility of the said domain name is being misused, considering that the Plaintiff operates a gaming app under identical marks. The mark 'WINZO' being a registered trade mark of the Plaintiff and the Plaintiff being a globally renowned gaming platform, misuse of the name would be impermissible. The Defendants are clearly are taking shelter under the technological tools to stay hidden, while continuing to operate the platform. Defendants' use of a similar name/ mark not only raises concerns about potential confusion but also suggests an attempt to free ride on the Plaintiff's established reputation.
30. Accordingly, the Plaintiffs has made a prima facie case for grant of an injunction. The balance of convenience also clearly lies in favour of the Plaintiff. Further, irreparable injury shall be caused not just to the Plaintiff, but maybe caused to the public at large as well, as the said websites may extract money and deceive the customers in the garb of Plaintiff's reputation.
CS(COMM) 918/2023 Page 9 of 10This 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 23/12/2023 at 01:12:57 Therefore, the Plaintiffs have made out a case for the grant of an ex-parte ad- interim injunction against the Defendants.
31. Under such circumstances, Defendant No. 1 is restrained from using the mark 'VinZO', 'VinZOgame', the domain name https://vinzogame.com and any other mark or name which is similar to the Plaintiff's marks for offering any products or services including for gaming websites, gambling services, betting etc.,
32. Defendant No. 2 is directed to give disclosure of the person or entity who had registered the said domain name to the Plaintiff within two weeks as also lock and suspend the said domain name so that the access to the domain name is not available.
33. Reply to the application be filed within four weeks after service of pleadings and documents.
34. Compliance under Order XXXIX Rule 3 within one week.
35. List before the Joint Registrar on 13th February, 2024.
36. List before the Court on 17th May, 2024.
PRATHIBA M. SINGH, J.
DECEMBER 20, 2023 mr/bh CS(COMM) 918/2023 Page 10 of 10 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 23/12/2023 at 01:12:57