The Delhi High Court (HC) ruled that issuing a warning before downloading is in the nature of a disclaimer and does not constitute trademark infringement while rejecting WinZO Games’ temporary request to prevent Google from showing any warning against the usage of the application.
On February 14, the bench headed by Justice Amit Bansal observed that the warning issued by Google is a disclaimer and does not prohibit or block users from downloading and installing the app.
The court stated that users could choose to “Download anyway” to keep downloading and installing the APK files. According to the HC, the warning was intended solely to forewarn the user before they downloaded the application because these files were not part of Google’s ecosystem.
In November 2021, WinZO found that Google displayed warnings for users downloading the WinZO app from their official website. The application was previously available on Google Play Store but was removed after converting it to a paid gaming platform.
Google submitted that the warnings are a safeguard to users to double-check the application before downloading and installing, and many other browsers do this. The HC agreed and stated that “On a prima facie view, this appears to be the industry practice,” and said, as per the Information Technology Rules, 2021, ‘Google and other browsers are required to put in place such warnings to guard the user against potential threats.’
According to the HC, none of the provisions of the Trademark Act apply to the alleged use of WinZO’s trademark by Google. The HC noted that a review of the warning would reveal that the reference to the name of the APK file/application “WinZO” is only made for the purpose of identifying the file being downloaded for the warning.
The HC further ruled that there was no evidence of trademark infringement because Google was not providing any form of goods or services using WinZO’s trademark.
Justice Bansal said, “Therefore, in my prima facie view, the reliance placed by the plaintiff on Section 29 of the Trade Marks Act, 1999 to make out a case for infringement/tarnishment of its ‘WinZO’/ ‘WinZO Games’ marks is misplaced.”
The HC found that there was no comparison between the products and services of Google and those of WinZO, nor was there any advertising in response to WinZO’s trademark infringement claim. The HC also stated that WinZO has not yet shown a case for their claim that the warning has caused a drop in downloads from their website and that this claim is speculative.