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Synopsis

The Delhi High Court has 'dismissed' a plea filed by social gaming platform WinZO challenging Google's recent Play Store policy alleging that Google is selective including only Daily Fantasy Sports (DFS) and Rummy on the Google Play Store, leaving out a large segment of skill gaming platforms and indie developers.

While denying relief to the gaming company, Justice Amit Bansal noted that Google LLC uses certain warnings in respect of all third-party applications that are downloaded from the internet.

The single-judge bench also noted that the admitted position is that the said warning applies to all such file/application downloads and is not limited to the plaintiff's application and that it is not discriminatory.

The court noted that Google’s warning is in the form of a disclaimer and does not prohibit or block the download. Users can continue downloading and installing the APK files by selecting the 'Download anyway' option. It also 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… On a prima facie view, this appears to be the industry practice.”

Citing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the court stated that the law mandates such warnings to guard users against potential threats. Furthermore, the court noted that Google had also provided details that such warnings are not unique to the Google Chrome browser and that several other browsers also display such warnings when viewers/potential users download third-party APK files/applications from their websites.

The gaming company's counsel claimed that Google LLC infringed/tarnished its trademark by naming the APK file/application 'WinZO' in the warning displayed to its users. He also argued that the number of downloads of the application had decreased significantly as a result of the disclaimer.

WinZO in its petition sought direction retraining Google from implementing the arbitrary classification which will impact the reputation of WinZo’s business.

WinZO's press release stated that it is among many other industry players, such as MPL and Zupee which have called the policy arbitrary, unfair, and restrictive. It believes that Google’s policy can lead to distortions in the competitive Indian gaming ecosystem by resulting in unparalleled access to the 2.5 billion monthly active users across 190 countries where the Google Play Store is available.

In view of Google’s Updated policies and challenge to the same, Saumya Singh Rathore, Co-founder, of WinZO Games said, “Google Play, as a market leader, has a duty to act in a fair, reasonable, and non-discriminatory manner. There does not seem to be a reason for selecting only DFS and Rummy. There is no engagement with the industry to find out the dynamics. There is no evaluation of the impact that is likely to result from such a clearly discriminatory and arbitrary classification. Above all, we fail to understand as to how Google is being permitted to select that within a set of legal/legitimate businesses, only two will be onboarded and the others, excluded."

"This policy will not only reduce the marketing cost for players in monopoly to 1/4th of their earlier spends but also create a false perception of legitimation of DFS & Rummy over all other games such as Carrom, Chess, Quiz, etc. In the fast-evolving sunrise sector, gaming, a level playing field is key to innovation and success. A year-long pilot is detrimental to thousands of companies and can lead to irreversible market distortion of a fast-moving gaming tech industry, leading to the death of many players as the strong get stronger," she had added.

Case Title: Winzo Games Private Limited v. Google LLC & Ors.

Statue: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021