Delhi High Court - Orders
Winzo Games Pvt. Ltd. & Anr vs Google Llc & Ors on 22 September, 2022
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 658/2022 & I.As. 15524-28/2022
WINZO GAMES PVT. LTD. & ANR. ..... Plaintiffs
Through: Mr. Amit Sibal, Sr. Advocate with
Mr. Abhishek Malhotra & Mr.
Atmaja Tripathy, Advocates (M-
7768060955)
versus
GOOGLE LLC & ORS. ..... Defendants
Through: Mr. Sajan Poovayya, Sr. Advocate
with Mr. Dheeraj Nair, Ms. Vishrutyi
Sahni, Ms. Aishna Jain, Ms. Alvia
Ahmad & Ms. Raksha Agarwal,
Advocates for R-1&2 (M-
8587894245)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 22.09.2022
1. This hearing has been done through hybrid mode.
I.A. 15525/2022 (for exemption)
2. This is an application filed by the Plaintiff under section 151 of the Code of Civil Procedure, 1908 seeking exemption from filing original, certified, fair typed copies of dim/proper margin/underline/single line spacing documents.
3. Allowed, subject to all just exceptions.
4. I.A. 15525/2022 is disposed of.
I.A. 15526/2022 (for additional documents)
5. This is an application filed by the Plaintiff under section 151 of the Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 1 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 Code of Civil Procedure seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act').
6. The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act.
7. I.A. 15526/2022 is disposed of.
I.A. 15528/2022 (for extension of court fee)
8. This is an application filed by the Plaintiff under section 149 read with 151 of the Code of civil Procedure seeking extension of time for filing court fees as well as payment of one time process fee.
9. For the reasons stated in the application, the extension is granted for filing of the court fee. Accordingly, court fee to be deposited within a period of two weeks along with the one-time process fee.
10. I.A.15528/202 is disposed of.
CS(COMM) 658/2022 & I.A. 15524/2022 (u/O XXXIX Rule 1 & 2 CPC)
11. The present suit is filed by the Plaintiffs seeking to restrain the Defendants from indulging in acts of unfair trade practices and wrongful interference leading to loss of business, commercial injury and resultant impact on reputation of the Plaintiffs. The Plaintiffs pray for permanent injunction and damages.
12. It is averred that Plaintiff No. 1 - M/s Winzo Games Pvt. Ltd. is a digital gaming and technology company, which was established in 2016 and is based out of New Delhi. It owns and operates an online digital gaming platform under its trade mark and brand name 'WINZO,' i.e., the application/platform (hereinafter, 'app') as well as its website https://www.winzogames.com/ which is accessible worldwide. The said app Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 2 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 claims to currently offer over hundred games in five formats for users in more than twelve regional languages. The app provides users with a platform to play games of skill and win real tangible prizes. Plaintiff No. 1 claims to have a registered user base of more than 85 million users with a strong foothold in Tier - 2 and Tier - 3 cities of the country and annual revenue figures for the financial year 2020-21 being Rs. 103,46,25,432/-. As per Plaintiff No. 1, it is a sponsor of the IPL team - Kolkata Knight Riders and its services have been endorsed by leading celebrities like Mr. MS Dhoni, Mr. Akash Chopra among others. The various awards won by Plaintiff No. 1 include:
i. The Technology Start-Up of the year 2019 by Entrepreneur India, ii. India's 100 Top Start-Ups, 2020 by SutraHR, etc. Plaintiff No. 2 - Saumya Singh Rathore, is the Co-founder, Director, Shareholder and Authorised Representative of Plaintiff No. 1.
13. Defendant No. 1 - Google LLC, is a technology company located in California, USA, Defendant No. 2 - Alphabet Inc., is a multinational technology conglomerate holding company that in the year 2015 became the Parent company of Defendant No. 1 which is also located in California, USA and Defendant No. 3 - Google India, is a subsidiary of Defendant No. 1, located in Gurugram, India.
14. The case of the Plaintiffs is that it is a leading name in the gaming industry and offers various games of skill and chance under its brand 'WINZO' and 'WINZO GAMES' which is offered as an online app capable of being downloaded both on IOS (Apple), Android (Google Play Store) platforms as well as its website. The cause of action in the present suit is that the Defendants own and operate Google Play Store on the Android operating Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 3 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 System (hereinafter 'AoS'). It is averred that recently, as of 7th September, 2022 the Defendants have updated their Developer Program Policy with respect to India, wherein, Google Play has introduced a Pilot Programme dealing only with DFS and/or Rummy apps for a period of one year starting from 28th September, 2022 to 28th September, 2023.
15. Mr. Amit Sibal, ld. Senior Counsel appearing for the Plaintiffs submits that the said policy constitutes an unfair trade practice as it intends to deliberately exclude apps of the Plaintiffs which contain various other games of skill such as chess, carrom, 8 ball pool, etc. He further submits that this Updated Developer Program Policy unfairly restricts other application providers who offer games of skill and instead favours certain competing apps alone through the Google Play Store.
16. On a query to Mr. Sibal, ld. Senior Counsel, as to how this suit would be maintainable before the IP Division, reliance was placed upon Section 79 of the Information Technology Act, 2000, to argue that since the Defendants claim to be intermediaries, they cannot have the power to select or modify the information contained in a transmission under the Information Technology Act, 2000. He also submits that whenever the 'WINZO' app is downloaded, the Defendants offer a disclaimer/warning as a pop-up to users cautioning the users that the 'type of app file may harm the user's device'. However, he fairly concedes that insofar as the said disclaimer/warning is concerned, a separate suit has been filed before this Court being CS(COMM) 176/2022 titled Tictok Skill Games Pvt. Ltd. v. Google LLC & Ors. The said matter is stated to be pending consideration. Insofar as the unfair trade practice itself is concerned, ld. Senior Counsel submits that the same is defined under Section 2(47) of the Consumer Protection Act, 2019 Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 4 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 and any violation of the said rights is assailable even under common law and not merely under the Consumer Protection Act, 2019, in view of Section 100 of the said Act. Thus, ld. Sr. counsel submits that the present suit would be maintainable before this Court.
17. On the other hand, Mr. Sajan Poovayya, ld. Senior Counsel appearing for the Defendants at the outset submits that there is no Intellectual Property Rights issue or Information Technology Act, 2000 related issue in the present case. The present issue is at best an issue relating to trade, commerce and games of skill & chance. He submitted that the Google Play Store has never offered any apps to be downloaded that are real money game apps (RMGs), related to either games of skill or chance. However, pursuant to its Update of the Development Program Policy a pilot programme has been launched by Google relating to DFS and Rummy apps, which according to Mr. Poovayya, are both declared to be games of skill by the Supreme Court in two judgments. Insofar as the Plaintiffs are concerned, they offer both games of skill and games of chance on their app but Google has not yet taken a policy decision whether to permit such apps to be downloaded from the Google Play Store.
18. Ld. Senior Counsel further submits that the Google Play Store is not the only play store which is available on the AoS rather there are other play stores as well, that allow such apps as those run by the Plaintiffs to be downloaded by users. Thus, he submits that there is no Intellectual Property Right or Information Technology Act, 2000 issue that arises in the present case. Hence, the maintainability of the present petition is under challenge.
19. The Court today is concerned about the maintainability of the present suit inasmuch as the question as to whether Google as an intermediary can Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 5 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 permit only some apps on the Google Play Store or in effect prohibit some apps on the Google Play Store may not prima facie be an issue under Section 79 of the Information Technology Act, 2000 as the same may not amount modification of the Plaintiffs' app in any manner. The issue, however, may require further consideration on the question of, whether an allegation of unfair trade practice can be entertained by this Court in the IP Division jurisdiction and whether there would be any infraction of any rights under the Intellectual Property Rights or under the Information Technology Act, 2000. The question as to whether anti-competitive conduct can be looked into by a civil court would also arise. Questions as to net neutrality have also been raised considering the vast coverage of Google Play as a playstore. All these issues would require further consideration.
20. Accordingly, subject to the issue of maintainability, let the plaint be registered as a suit.
21. Issue summons to the Defendants.
22. Ld. Counsel for the Defendants accepts summons.
23. The summons to the Defendants shall indicate that a written statement to the plaint shall be positively filed within the time period of 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of Admission/Denial of documents of the Plaintiff, without which the written statement shall not be taken on record.
24. Liberty is given to the Plaintiff to file a replication within the time period of 15 days from the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiff, an affidavit of Admission/Denial of documents of the Defendant be filed by the Plaintiff, Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 6 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 without which the replication shall not be taken on record. If any of the parties wishes to seek inspection of any documents, the same shall be sought and given within the prescribed timelines.
25. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
26. List before the Joint Registrar for marking of exhibits on 16th November, 2022.
27. Accordingly, list before Court on 6th December, 2022.
28. In I.A. 15524/2022 issue notice to the Defendants. Ld. Counsel for the Defendants accepts notice. Reply be filed within two weeks. Rejoinder, thereafter, be filed within two weeks including on the issues of maintainability.
29. List for hearing on 6th December, 2022.
I.A. 15527/2022 (exemption from pre-institution mediation)
30. This is an application filed by the Plaintiff under section 12A of the Commercial Courts Act read with Section 151 of the Code of Civil Procedure, 1908 seeking exemption from pre-institution mediation.
31. Mr. Sajan Poovayya, ld. Senior Counsel for the Defendants submits that insofar as the Plaintiffs are concerned, since the Plaintiffs' app offers Daily Fantasy Sports (hereinafter 'DFS') and Rummy, if the Plaintiffs wish to make available a new app pursuant to Google's Updated Developer Program Policy they may contact the officials of the Defendants. If such a request is made by the Plaintiffs, the Defendants are willing to consider the same.
32. Accordingly, the Plaintiffs are free to apply to the Defendants if they intend for any part of their app to be permitted on the Google Play Store, Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 7 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52 within a period of one week. The said application request if made by the Plaintiff shall be considered by the Defendants expeditiously and the outcome of the consideration shall be duly communicated to the Plaintiffs.
33. Exemption as sought for is granted. I.A. 15527/2022 is disposed of.
PRATHIBA M. SINGH, J.
SEPTEMBER 22, 2022 Rahul/SR Signature Not Verified Digitally Signed CS(COMM) 658/2022 Page 8 of 8 By:DEVANSHU JOSHI Signing Date:24.11.2022 11:41:52