Moonshine is the real Baazigar!
As online gaming industry is gaining traction among the internet savvy generation, the disputes on branding and IP issues had to follow. The post discusses two entities operating online gaming platform pitted against other for the mark ‘Baazi’ (an urdu word that commonly refers to a ‘bet’ or ‘game’).
The Plaintiff, Moonshine Technology Private Limited (Moonshine) filed the suit against the Defendants, Tictok Skill Games Private Limited & Ors (Tictok) at the Delhi high Court alleging trademark infringement, passing off, unfair trade practises, etc., and to restrain the latter from using the mark ‘Baazi’ in relation to on-line gaming services. The preliminary injunction application filed by Moonshine is opposed by Tictok. The post summarises the contentions of the parties and the court ruling.
Moonshine in the suit states:
- Established in the year 2014, they are a part of the ‘Baazi’ Group of Companies and a leading name in the Indian gaming industry.
- They are the registered proprietor of the trademarks ‘Baazi’ and a family of ‘Baazi’ formative marks such as ‘Baazi Games’, ‘Poker Baazi’, ‘Balle Baazi’, etc., in classes including 9, 28 and 41.
- They offer quality gaming products to its customers under the registered trademarks inter alia ‘Baazi’, ‘Baazi Games’, ‘Poker Baazi’ , ‘RummyBaazi’ , ‘BalleBaazi’ , etc.
- Tictok is a competitor of Moonshine has dishonestly adopted the mark ‘Baazi’ in relation to their services. Tictok is using the mark ‘Winzo Baazi’ which amounts to trademark infringement and passing off.
- Tictok’s contention that they are using ‘Baazi’ as a descriptive word for gaming applications is not correct. Tictok is using Winzo and ‘Baazi’ in the same font having same significance which evidences that they are using it in the trademark sense. Blatant copying is exemplified by their use of the mark ‘Baazi’ with the registered trademark Winzo.
Tictok countered the injunction application contending that:
- ‘Baazi’ is a generic word, meaning ‘bet’ or a ‘game’ in Urdu and cannot be monopolized. Thus, Moonshine’s use of the word ‘Baazi’ for a web-based gaming application, which involves betting only describes their services.
- ‘Baazi’ which is a common word ought not have been registered in the first place and whether it has assumed secondary meaning is to be proved during trial. There are several entities using ‘Baazi’ as part of their trademark.
- Tictok is not using ‘Baazi’ in the trademark sense but only to describe their services.
- The marks when compared as a whole are not similar. ‘Winzo Baazi’ is not similar to ‘Balle Baazi’, ‘Poker Baazi’, etc.
- There is acquiescence and delay, and the injunction application is to be dismissed.
The Court after considering the pleadings, arguments and case laws held:
- Documents on record evidence the fact that Moonshine is the registered proprietor of the marks ‘Baazi’ and a family of ‘Baazi’ formative marks such as ‘Poker Bazzi’ , ‘RummyBaazi’ , ‘BalleBaazi’ , etc., in relation to gaming services. Thus, registration confers exclusive rights to use the said trademarks in relation to such services.
- The contention that ‘Baazi’ is a descriptive word and ought not have been registered will not succeed as Tictok has not initiated any cancellation action in this regard. Thus, the registration is prima facie evidence of their validity.
- Moonshine’s group of companies is described as ‘the Baazi Group’ and the website is ‘Baazi Games’ https://baazigames.com/. The revenue and expenditure figures evince that Moonshine’s is a thriving business and a popular online gaming platform.
- Admittedly, Tictok introduced a mobile application in the name of ‘Winzo Baazi’ in 2021 and the description on the website reveals that the use of the word ‘Baazi’ is not descriptive of what the App provides. Thus, the use is in trademark sense. Moreover, even during the pendency of the suit they have adopted the mark ‘Team Baazi’ of which Moonshine is the prior user.
- The word ‘Baazi’ may be used in Hindi/Urdu to mean a test of skill or strength in a game, however, it is not a word apt to describe online gaming or wagering services or as a mobile App. There is nothing on record to indicate that ‘Baazi’ is commonly used in the industry. Thus, it is a creative use of a common word by Moonshine for its services.
- The conjunctive use of ‘Baazi’ with ‘WinZo’ is similar to Moonshine’s use of ‘Baazi’ with ‘Poker’, ‘Rummy’, ‘Balle’, etc. Thus, there is likelihood of confusion as the services provided by the parties are identical. In the instant case copying is evident from the fact that Tictok has even copied the word ‘Team Baazi’ from Moonshine’s website further to the filing of the suit. Delay is not made out and it is not a material factor in the present case while deciding the injunction application.
- Adoption and use of the word ‘Baazi’ as a mobile App in the year 2021 and further adoption of ‘Team Baazi’ reinforces Moonshine’s grievance that Tictok is trying to pass off their services.
In light of the above, the Court granted an injunction in favour of Moonshine and restrained Tictok from using the mark ‘Winzo Baazi’ or any other mark comprising ‘Baazi’ in relation to online gaming services by way of preliminary injunction until the final decision in the suit.