Recently, the Delhi High Court dismissed a motion filed by Winzo Games Pvt. Ltd. (“Plaintiff”) seeking an interim injunction restraining Google, LLC & Ors. (“Defendants”) from infringing its rights in the WINZO marks by way of warnings displayed on their platforms.
The Plaintiff provides a gaming platform/application on Android Operating Systems. As per the Plaintiff, it has registrations for the WINZO marks in various classes and enjoys considerable goodwill and reputation. It was the Plaintifff’s case that when a user attempts to download the Plaintiff’s mobile application on the Defendants’ search engine, it displays a warning stating as follows: “This type of file may harm your device. Do you want to keep WinZO.apk anyway?”. The Plaintiff argued that this was beyond the mandate of India’s information technology rules, and results in infringement/tarnishment of the Plaintiff’s WINZO marks.
The Defendants, on the other hand, stated that the waring is an industry practice to protect consumers from malware. As per the Defendants, such use does not amount to use as a trade mark, which is necessary for trademark infringement/tarnishment.
The court was of the opinion that the warning on the Defendants’ platform is only a caution, and a consumer can still download the Plaintiff’s application. The court also noted that such warnings are not unique to the Defendants’ platforms. As such, the court opined that such a warning falls within the purview of the information technology rules. Further, the court observed that use of the WINZO marks on the Defendants’ platform is only for the limited purpose of the warning, and this cannot be considered to be use as a trade mark so as to infringe the Plaintiff’s rights. In light of these prima facie observations, the court dismissed the Plaintiff’s motion for an interim injunction.
Winzo Games Private Limited v. Google LLC & Ors., CS(COMM) 176/2022, Judgement dt. February 14, 2023