Google warning on downloading third-party apps is industry practice, not infringement or disparagement: Delhi High Court

The Delhi High Court recently held that Google’s disclaimer cautioning Android users before they download third-party applications, is an industry practice and does not amount to trademark infringement or disparagement [Winzo Games Private Limited v Google LLC & Ors]..Justice Amit Bansal ruled that the warning given by Google is a disclaimer and does not prohibit or block the download.“The users can continue to download and install the APK files by clicking on the option of ‘Download anyway’. It may be noted that APK files/applications like that of the plaintiff are not part of the ‘Google Play’ ecosystem and therefore, the same do not undergo the various security checks and measures. Therefore, the defendants are only cautioning the user before the user proceeds to download the application,” the Court said..The bench was dealing with an application for interim injunction filed by digital gaming and technology company Winzo Games Private Limited. The application was moved by Winzo in its suit arguing that Google displays a disclaimer/warning to users when they are attempting to download the plaintiff’s (Winzo) application from its website. The warning states that this type of files may harm devices.Winzo argued that warning in relation to the plaintiff’s services under the ‘WinZO’/ ‘WinZO Games’ marks is devoid of any legal justification and goes beyond the mandate of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).It was stated that this amounts to infringement of the Winzo’s trademarks and disparages their gaming services. The plea further said that the defendants (Google) are inducing breach of contract between the plaintiff and its users by displaying the aforesaid warning..After considering the case, the bench noted that such warnings are not unique to the Google Chrome browser but several others also display similar warning when users download third-part APK files and therefore prima facie, it appears to be an industry practice.The judge rejected the argument for trademark infringement holding that an examination of the warning would show that the reference to the name of the APK file/application ‘WinZO’ is only for identifying the file being downloaded for the purpose of the warning.“Hence, it does not constitute ‘use of the trademark in the course of trade’ within the meaning of Section 29(4). Further, since the defendant no.1 is not advertising goods/services by using the plaintiff’s marks in any manner, there is no case made out for infringement under Section 29(8) of the Trade Marks Act, 1999,” the Court said. The bench said there is no disparagement either since there is no comparison between the products/services of the defendants with that of the goods/services of the plaintiff. There is also no advertising for any goods or services, it was held.“Therefore, there is no competing interest of the products/services of the defendants involved and in my prima facie view, no case of disparagement is made out.”.On the issue of inducement of breach of contract between a user and Winzo, Justice Bansal concluded that the act of a user opting to download an application from the website of the plaintiff would not result in a contract.At best, a contract can come into place once the application is installed, the judge underscored.“Since there is no contract in place at the time the warning is displayed, there cannot be any question of inducement to breach the same. In fact, in paragraph 21 of the plaint, the plaintiff has admitted that when a user clicks on the download link on the plaintiff’s website, the user is only ‘willing to execute’ a contract with the plaintiff. It is further stated that the warning deters ‘willing’ users from entering into a contract with the plaintiff. Therefore, there is no contract at the stage when the warning appears,” the Court concluded. .The application for interim injunction was, therefore, rejected. .Advocates Abhishek Malhotra and Atmja Tripathy appeared for Winzo.Google was represented through Senior Advocate Arun Kathpalia along with advocates Mamta Rani Jha, Rohan Ahuja, Shrutima Ehersa, Vatsalya Vishal and Amishi Sodani..[Read Order]