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Synopsis

The Delhi High Court, recently, dismissed an appeal filed by Creativeland Advertising Private Limited (creative agency) seeking to restrain Winzo Games, an online gaming platform, from using the tagline ‘Jeeto Har DinZo’. 

The bench of Justice Subramonium Prasad held, “This Court is of the opinion that the view taken by the learned Arbitrator while adjudicating an application under Section 17 is not so erroneous so as to shock the conscious of the Court. The conclusion of the Arbitrator that the reading of Clauses 3 & 8 of the NDA gives an indication that in the event of such breach, the Disclosing Party will also be entitled to receive an award of actual and exemplary damages does not warrant any interference”. 

Winzo had initiated discussions on 11.10.2024, expressing interest in the Claimant’s creative services. Following initial exchanges, both parties executed a Non-Disclosure Agreement (NDA) on November 8 2024. Winzo shared a campaign brief on November 20, 2024, followed by a revised version on December 3, 2024. The Claimant developed three pitch decks, incorporating the tagline ‘Jeeto Har DinZo’, and presented them between December 2024 and January 2025. Winzo provided feedback and engaged in commercial negotiations, but on February 4, 2025, it unexpectedly terminated discussions, opting for a different creative team. Despite asserting that the creative work originated from internal strategies, Winzo offered Rs. 10 lakhs as compensation for the tagline.

On February 19, 2025, the creative agency filed a Section 9 petition before the court, seeking an injunction to prevent Winzo from using its confidential materials. The court constituted an Arbitral Tribunal and the Sole Arbitrator ruled that no formal agreement existed beyond the NDA and found no distinct price negotiated for the tagline. The Arbitrator determined that the creative agency’s allegations pertained to confidentiality breaches rather than copyright infringement, warranting a trial but not injunctive relief. Instead, the Arbitrator directed Winzo to furnish a Rs. 50 lakh bank guarantee.

The creative agency appealed, arguing that the tagline was its intellectual property and the NDA mandated confidentiality. Winzo countered that ‘Jeeto Har DinZo’ was not solely the creative agency’s creation and lacked proprietary exclusivity.

Senior Advocate Chander M. Lall, representing the Creative Agency, contended that during exchanges with Winzo, the proposed jingle "Khelo WinZo Jeeto Har DinZo" was well-received due to its potential to connect with the target audience. Senior Advocate Lall argued that the tagline and other deliverables were provided to Winzo in strict compliance with the NDA, which obligated both parties to maintain confidentiality. Senior Advocate Lall relied on Clause 3 of the NDA, which expressly prohibited the disclosure of confidential information to third parties.  

The Arbitrator concluded that the NDA contained provisions regarding compensation for actual or exemplary damages in case of a breach. However, the Arbitrator found that Clause 8 of the NDA permitted either party to engage other agencies for product or concept development. Based on this clause, the Arbitrator determined that the agreement, which was yet to be finalized in writing, was inherently determinable. Additionally, since no specific compensation was assigned to the tagline, and the creative agency did not claim copyright infringement but rather a breach of the NDA, the Arbitrator ruled that the creative agency was not entitled to an injunction.  

The court observed that its jurisdiction under Section 37 of the Arbitration & Conciliation Act was even more limited than that under Section 34. The court emphasized the established legal principles that courts could not act as appellate bodies or reassess evidence when reviewing an arbitral award under Section 34. 

"Interference under Section 34 of the Arbitration Act is warranted only when the award is in violation of the public policy of India, which is held to be the main fundamental policy of India. Potential intervention on account of infringing on the merits of the award would, therefore, not be permissible", the court highlighted. 

The court further added, "Courts only interfere with the awards that shock the conscious of the Court. Even a mere erroneous application of law might not be a ground of interference and the Courts, while deciding the cases under Section 34 of the Arbitration Act, have been warned time and again not to re-appreciate the evidence". 

The court noted the arbitrator rejected the creative agency’s argument which was based on Clause 3 of the NDA. The Arbitrator considered the fact that the creative agency had been negotiating for a higher price and that the ownership of brand development was itself disputed. As a result, the Arbitrator ruled against granting the discretionary relief of an injunction.  

The court held that the Arbitrator’s decision on Section 17 was not erroneous enough to justify interference. The Arbitrator’s reading of Clauses 3 and 8 of the NDA, particularly the provision allowing the disclosing party to seek actual or exemplary damages for a breach, was deemed reasonable. 

Applying settled legal principles, the court found the Arbitrator’s conclusions plausible and did not see any need for interference under Section 37. Consequently, the court allowed the creative agency to challenge the registration of the tagline ‘Jeeto Har DinZo’ by filing an appropriate application before the trademark authorities.

For Winzo: Senior Advocate Abhishek Malhotra with Advocates Srishti Gupta, Kumarjeet Ray and Anukriti Trivedi
For Creativeland: Senior Advocate Chander M. Lall with Advocates Nishad Nadkarni, Nirupam Lodha, Khushboo Jhunjhunwala, Kshitij Parashar, Gautam Wadhwa and Annanya Mehan
Case Title: Winzo Games Private Limited v Creativeland Advertising Private Limited (2025:DHC:1811)