Cannot use similar words with dishonest intention: Delhi High Court restrains use of 'Baazi' trademark

Granting relief to Indian gaming platform Baazi, the Delhi High Court recently restrained a company from using any of its trademarks [Moonshine Technology Pvt Ltd v. Ticktok Games Pvt Ltd]..Justice Asha Menon held that the use of a similar word by a competitor coupled with dishonest intentions and bad faith would suffice to restrain the user."User of a similar word by a competitor coupled with dishonest intention and bad faith would suffice to restrain such user and misuser, to do equitable justice to the plaintiff," the single-judge remarked, directing the defendants to remove any and all references to Baazi's trademark..The Court was acting on a suit filed by Moonshine Technology Private Limited, a part of the Baazi group of companies, seeking injunction against Ticktok Games Private Limited and others. The plaintiff accused the defendants of infringing upon its trademark by way of unfair trade practices..Plaintiff’s grounds.Defendants dishonestly used “Baazi” in respect of the services that they were providing, and thus passed off their services as those of the plaintiff.Paavan Nanda, director of the defendant company, had, in fact, been a customer of the plaintiff on pokerbaazi.com since July 11, 2015, and was fully aware of the business reputation of the plaintiff.On account of the success of the plaintiff's venture, Nanda started his own business called “WinZo Games”, thus, plaintiff was its competitor and used “Baazi” along with “WinZo”..Arguments of defendants.Plaintiff had failed to demonstrate the existence of a prima facie case or balance of convenience being in its favour or even that it would suffer irreparable loss and injury if the interim injunction was refused.The word “Baazi” is a generic word, meaning “bet” or a “game” in Urdu.Since plaintiff was using “Baazi” for a web-based gaming application, which involved betting, “Baazi” merely described their services.Under Section 9(1)(c) of the Trade Marks Act, 1999, such a word could not have been registered in the first place.It was submitted that whenever the word “Baazi” was used in vernacular or colloquially, it always signifies betting in a game..Section 9 (1)(c) of the Trade Marks Act, 1999, stipulates that trademarks that consist exclusively of marks or indications, which have become customary in the current language or in the bona fide and established practices of the trade, shall not be registered..Court's observations.The Court said that not only the combined words, such as, “Poker Baazi”, “Rummy Baazi”, “BalleBaazi”, etc, but also the word “Baazi” was registered in the name of the plaintiff. The defendants, on the contrary, did not even claim that they had registered trademarks in their names with the word “Baazi”.“In fact the defendants insist that they are not even using “Baazi” in the trademark sense,” it added..Further, it was underlined that the word “Baazi” may be used in Hindi/Urdu to mean a test of skill or strength in a game and indicate wagering or betting.“As observed by Lord Simon , Lord Chancellor in Yorkshire Copperworks Limited, the more apt is a word to describe the goods of a manufacturer the less apt would it be to distinguish them, but surely “Baazi” is not a word apt to describe gaming or wagering services online or as a mobile App,” it noted.Thus, the word was found to have been used in a clever and creative manner by the plaintiff for its services.“There is nothing on record to indicate that the word “Baazi” is commonly used in the industry,” the order stated.The Court highlighted that that the interests of the consumers would also need to be protected and cannot be overlooked..The manner in which “Baazi” was written and projected, besides being used in a mobile app in 2021, and the adoption of the term “Team Baazi”, while the suit was pending, reinforced the plaintiff’s grievance that the defendants had tried to pass off their services as those originating from the plaintiff, the Court held.The Court also noted,"The defendants have alleged that the plaintiff had become jealous of the $65 million investment that was coming to the defendant No.1, prompting the filing of the present suit. But the opposite appears to be more true, that the defendant No.2/Paavan Nanda, having realized the worth of “Baazi”, has sought to piggyback ride on the reputation and goodwill of the plaintiff by somehow giving an impression that “WinZo Baazi” was just like “Baazi Games” or “Poker Baazi”, “Rummy Baazi”, “Balle Baazi”, etc...".“There are several words that could have been used to describe the gaming services and App of the defendant instead of “Baazi” and which are indicative of gaming/wagering/competing," held the Court.While allowing the plaintiff's plea till the suit's final disposal, the Court directed the defendants to remove all references to the brand and registered mark “Baazi” in any form that were in violation of intellectual property rights..Senior Advocate Chander M Lall along with Advocate Ananya Chug and a team from L&L Partners comprising Subhash Bhutoria and Amit Panigrahi represented the plaintiff. Advocates Abhishek Malhotra, Shilpa Gamnani and Sanya Sehgal of TMT Law Practice appeared for the defendants..[Read Order]