1 M D C B M I P W M P: Emorial Rafting Ompetition Y Etacept N Artnership ITH EMO Undits

1ST MEMORIAL DRAFTING COMPETITION BY METACEPT IN PARTNERSHIP
WITH MEMO PUNDITS TEAM CODE: MD-70
1ST MEMORIAL DRAFTING COMPETITION BY METACEPT

IN PARTNERSHIP WITH MEMO PUNDITS
IN THE HON’BLE HIGH COURT OF NEW TELLY
IN THE MATTER OF
ORIGINAL CIVIL JURISDICTION

C.S (O.S.) No._____/2020
(U/S 20 OF CODE OF CIVIL PROCEDURE, 1908 r/w S. 5 OF DELHI HIGH COURT
ACT, 1966 AND S. 134 OF TRADE MARKS ACT, 1999)
M.S. DHENIER & VIRAT KELLY……………………………………...…...PLAINTIFFS
~VERSUS~
AVENGERS MEDIA and ENTERTAINMENT Pvt. Ltd. …………………DEFENDANT
AND
ORIGINAL WRIT JURISDICTION

WRIT PETITION (CIVIL) NO._____/2020
(UNDER ARTICLE 226 OF THE CONSTITUTION OF INTIA)
M.S. DHENIER & VIRAT KELLY…………………………………...…PETITIONERS
~VERSUS~
UNION OF INTIA & OTHERS.….……………………………………...RESPONDENTS
UPON HUMBLE SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE OF

NEW TELLY AND HIS COMPANION JUSTICES OF
THE HIGH COURT OF NEW TELLY
MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

Page |i
WITH MEMO PUNDITS
TABLE OF CONTENTS
LIST OF ABBREVIATIONS……………………………………………………………….iv
INDEX OF AUTHORITIES…………………………………………………………………v
I. LIST OF CASES……………………………………………………………………….…....v
II. LIST OF STATUTES……………………………………………………………..…….....ix
III. LIST OF BOOKS………………………………………………………………………......x
IV. LIST OF ONLINE DATABASES……………………………………...……………….....x
STATEMENT OF JURISDICTION………………………………………………………..xi
STATEMENT OF FACTS………………………………………………………………....xii
STATEMENT OF ISSUES………………………..……………………………………….xiii
SUMMARY OF ARGUMENTS…………………………………………………………..xiv
ARGUMENTS ADVANCED………………………………………………………………..1
ISSUE I: WHETHER APL’S USE OF THE PLAYER ILLUSTRATIONS IN

CONJUNCTION WITH THE PLAYER CODES AMOUNTS TO INFRINGEMENT OF
M.S. DHENIER AND VIRAT KELLY’S PERSONALITY RIGHTS AND PASSING
OFF?..........................................................................................................................................1
[I.A] APL’S USE OF THE PLAYERS’ ILLUSTRATIONS AND PLAYERS’ CODES
DOESN’T INFRINGE PETITIONER’S PERSONALITY RIGHTS.………………………....1
[I.A.1] The petitioners have failed to establish the test of validity and identifiability…………..1
[I.A.2] APL has copyright over the illustrations of MS7 and VK18 and several other player’s
illustrations used in Vision 11………………………………………………………………………….2
[I.A.3] The APL has complied with the doctrine of “modicum of creativity”……………………2
[I.A.4] The Vision 11 fantasy game complies with the “doctrine of transformative use”………3
[I.A.5] The Vision 11 app is protected under the “doctrine of nominative fair use”……………4
[I.A.6] The “functionality doctrine” brings the case in favour of the defendant-company……..5
[I.2] THE APL HAS NOT INFRINGED PETITIONER’S RIGHT OF PASSING OFF………5
[I.3] THE PERSONAL INFORMATION ALLEGEDLY USED BY THE DEFENDANT-
COMPANY ARE PRESENT IN PUBLIC RECORDS………………………………………..6
[I.4] THE PLAINTIFFS ARE NOT ENTITLED TO GET ANY PROTECTION UNDER
TRADEMARK ACT AND COPYRIGHT ACT………………………………………………7

P a g e | ii
WITH MEMO PUNDITS
ISSUE II: WHETHER, VISION 11 AMOUNTS TO GAMBLING UNDER THE
PUBLIC GAMBLING ACT, 1867?........................................................................................8
[II.A] THE USERS HAVE TO ENTER INTO A MANDATORY AGREEMENT AND
ACCEPT THE CONTRACTUAL TERMS AND CONDITIONS BEFORE USING THE APP.
…………………………………………………………………………………………………8
[II.B] THE VISION 11 APP IS PREPONDERANTLY A GAME OF “SKILL” RATHER
THAN “CHANCE”……………………………………………………………………………8
[II.B.1] Material and considerable skills are required by the user in 'drafting' of a virtual team
and 'playing' fantasy sports game……………………………………………………………………..8
[II.B.2] The element of skill is the dominating factor in determining the result of the game……9
[II.B.2.i] The Vision 11 app comes under the ambit of ‘game of mere skill’………………………9
[II.B.2.ii] The instant fantasy cricket game passes the ‘dominant factor test’, or ‘predominance
test’………………………………………………………………………………………………………11
[II.C] THE POINTS ARE ATTRIBUTED IN A TRANSPARENT AND VERIFIABLE
MANNER…………………………………………………………………………………….12
[II.D] THE USERS ARE CHARGED WITH A FIXED ADMINISTRATIVE FEE FOR
PARTICIPATION IN EACH ROUND………………………………………………………13
[II.E] THE ELEMENT OF EQUAL CHANCE OF GAIN OR LOSS IS ABSENT…………13
[II.F] THE VISION 11 IS A LEGITIMATE BUSINESS ACTIVITY PROTECTED UNDER
ARTICLE 19 (1) (G) AND ARTICLE 301 OF THE CONSTITUTION OF INTIA…………14
PRAYER……………………………………………………….……………………………15

P a g e | iii
WITH MEMO PUNDITS
LIST OF ABBREVIATIONS
ABBREVIATIONS EXPANSIONS
S. SECTION
v. VERSUS
& AND
Art. ARTICLE
U.O.I UNION OF INDIA
Govt. GOVERNMENT
Para. PARAGRAPH
AIR ALL INDIA REPORTER
S.C. SUPREME COURT
SCC SUPREME COURT CASES
SCR SUPREME COURT REPORTER
Anr. ANOTHER
Ors. OTHERS
AP ANDHRA PRADESH HIGH COURT
Cal. CALCUTTA HIGH COURT
Gau. GAUHATI HIGH COURT
Ker. KERALA HIGH COURT
M.P. MADHYA PRADESH
MP MADHYA PRADESH HIGH COURT
Mad. MADRAS HIGH COURT
W.B. WEST BENGAL
Ed. EDITION
ILR INDIAN LAW REPORTER
Bom. BOMBAY HIGH COURT
Vol. VOLUME
p./ Pg. PAGE NUMBER
P&H PUNJAB & HARYANA HIGH COURT

P a g e | iv
WITH MEMO PUNDITS
TABLE OF AUTHORITIES
I. LIST OF CASES
SL. NO. NAME OF THE CASE CITATIONS PAGE NO.
1. Andhra Pradesh v. K. Satyanarayana AIR 1968 SC 825 ¶ 12 10
2. Andhra Pradesh v. K. Satyanarayana (1968) 2 SCR 387: AIR 11

1968 SC 825
3. Attorney General v. Luncheon and 1929 AC 400: 1929 All 12
Sports Club Ltd. ER Rep Ext 780
4. Babasaheb Rahimsaheb v. Rajaram (1931) 33 BOMLR 260 14
Raghunath Alpe
5. Babu Bhai and Ors v. State of Raj. S.B. Cr. Misc. Pet. No. 8
and Ors. 508/97
6. Bala Krishnan v R Kanagavel (2000) (3) Ar L R 622 6
Kamaraj and others
7. Bassoon v. Tohersey; (1903) I. L. R. 28 Bom. 14
616
8. Bimalendu De and Ors. v. Union of MANU/WB/0232/2000 ¶ 11
India (UOI) and Ors 12
9. Bimalendu De v. Union of India AIR 2001 Cal 30 12
10. Boardwalk Regency Corp. v. Att'y 457 A.2d 847, 850 (N.J. 9
Gen. of N.J. Super. Ct. Law Div.
1982)
11. Browns v. Entertainment Merchants 564 U.S. 786 (2011) 3
Association
12. C.B.C. Distribution & Marketing v. 505 F.3d 818 (8th Cir. 1
MLBAM 2007)
13. Cadila Health Care Ltd. v. Cadila JT (2001) (4) SC 243 6
Pharmaceuticals
14. Caminada v. Hulton (1891) 60 LJ MC 116 12
15. Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 579 (1994) 3
16. Castle Rock Entm't Inc. v. Carol 150 F.3d 132, 141-43 (2d 3
Publ'g Grp. Inc. Cir. 1998)
17. Chandresh Sankhla v. State of 2020 SCC OnLine Raj 06
Rajasthan 264, ¶s 05
18. Coles v. Odhams Press Ltd. (1936) 1 KB 416: 1935 11
All ER Rep 598
19. Comedy III Productions v. Inc. v. 21 P.3d 797 (Cal. 2001) 3
Gary Saderup
20. Commonwealth v. Club Caravan, 571 N.E.2d 405, 406-7 10
Inc. (Mass. App. Ct. 1991)

Page |v
WITH MEMO PUNDITS
21. Commonwealth v. Kentucky Jockey 38 SW 2d 987 12
Club
22. Commonwealth v. Two Elec. Poker 465 A.2d 973 977 (Pa. 11
Game Machines (Two Elec.) 1983)
23. Consim Info Pvt. Ltd v. Google India (2010) 6 CTC 813 4
Pvt. Ltd
24. Dayabhai Tribhovandas v. (1885) ILR 9 Bom 358 14
Lakhmichand Panachand
25. Director General of Police, Chennai 2018 CriLJ 1842 12
& Ors. v. S. Dilibabu
26. Dr. K.R. Lakshmanan v. State of AIR 1996 SC 1153 ¶ 23 11
Tamil Nadu
27. Dr. K.R. Lakshmanan v. State of (1996) 2 SCC 226, ¶s 18 11
Tamil Nadu & 19
28. Dr. K.R. Lakshmanan v. State of (1996) 2 SCC 226), ¶s 20 12
Tamil Nadu & 21
29. Dr. K.R. Lakshmanan v. State of AIR 1996 SC 1153 ¶ 22 14
Tamil Nadu
30. Dr. K.R. Lakshmanan v. State of (1996) 2 SCC 226 ¶ 17 10
Tamil Nadu;
31. Eastern Book Company v. D.B. (2008) 1 SCC 1 2
Modak
32. Edward J. Rohan v. Detroit Racing 166 ALR 1246 SW 2d 12
Assn. 987
33. Elderton v. Totalisator Co. Ltd. (1945) 2 AER 624 12
34. Engle v. State of Arizona (1939) 53 Ariz 458 12
35. Erven Warnink v. Townend (1979) AC 731 6
36. ETW Corp. v. Jireh Publ’g, Inc. 332 F.3d 915, 937-38 (6th 4
Cir. 2003)
37. FanDuel v. Schneiderman, N.Y. Sup. 161691/2015 13
Ct.
38. Fanduel, Inc. v. Madigan No. 15 MR 1136 (Ill. Cir. 12
Ct. Mar. 16, 2016)
39. Fantasy Sports Properties, Inc. v. 287 F.3d 1108 (U.S. Ct. 11
Sportsline.com, Inc. App. 2002)
40. Feist Publication Inc. v. Rural 499 U.S. 340, 345 (1991) 2
Telephone Service
41. Gautam Gambhir v. D.A.P and Co. MANU/DE/5440/2017 ¶ 6
and Ors. 9
42. Gherulal Parakh v. Mahadeodas AIR 1959 SC 781 14
Maiya & Ors.
43. Grant v. State 44 S.E.2d 513, 515 (Ga. 12
Ct. App. 1947)

P a g e | vi
WITH MEMO PUNDITS
44. Gurdeep Singh Sachar v. Union of MANU/MH/1451/2019, 10
India & Ors. ¶s 8 & 17
45. H. Anraj v. State of Maharashtra AIR 1984 SC 781 10
46. Hoffman v. Capital Cities/ABC. Inc. 255 F.3d 1180, 1186 (9th 3
Cir. 2001)
47. Humphrey v. Viacom, Inc. 2007 BL 38423 (D.N.J. 13
June 20, 2007)
48. In re Allen 377 P.2d 280, 281 (Cal. 11
1962)
49. Inwood Laboratories Inc. v. Ives 456 U.S. 844 (1982) 5
Laboratories Inc.
50. Kizhakke Naduvath Suresh v. State W. P. No. 13728 (W) of 12
of West Bengal 2015
51. Las Vegas Hacienda, Inc. v. Gibson 359 P.2d 85, 87 (Nev. 13
1961)
52. Lewis v. State 189 S.E. 566, 566 (Ga. 12
Ct. App. 1937)
53. M/s. B.R. Enterprises v. State of U.P. AIR 1999 SC 1867 14
& Ors
54. Manoranjithan Manamyil Mandram AIR 2005 Mad 261 11
v. State of Tamil Nadu
55. MJ Sivani v. State of Karnataka (1995) 6 SCC 289: AIR 11
1995 SC 1770
56. Moore v. Elphick (1945) 2 All ER 155 12
(CA)
57. Nat'l Football League v. Governor of 435 F. Supp. 1372, 1384 12
Del. (D. Del. 1977)
58. New Kids on the Block v. News Am. 971 F.2d 302 (9th Cir. 4
Publishing Inc. 1992)
59. New State Ice Co. v. Liebmann 285 U.S. 262, 311 (1932) 13
60. Panas v. Texas Breeders & Racing Tex Civ App 80 SW 2d 12

Assn. Inc. 1020
61. People ex rel. Ellison v. Lavin 71 N.E. 753, 755 (N.Y. 11
1904)
62. People v. Monroe 85 A.L.R. 605 12
63. People v. Schapiro 77 N.Y.S.2d 726 728
64. People v. Turner 629 N.Y.S.2d 661, 662 11

(N.Y. Crim. Ct. 1995)
65. Philip D. Murphy, Governor of New (case no. 16-476 and 16- 10
Jersey v. National Collegiate Athletic 477)
Association etc.
66. Phoolan Devi v Shekar Kapoor and (1995) P T C 46 6
others

P a g e | vii
WITH MEMO PUNDITS
67. Playboy Enterprises Inc. v. Welles 279 F.3d 796 (9th Cir. 4
2002)
68. Pleasantime Products v. (2010) 1 SCC 265 11
Commissioner of Central Excise,
Mumbai-I
69. Public Prosecutor v. Veraj Lal Sheth AIR 1915 Mad 164 8
70. Qualitex Co. v. Jacobson Products 514 U.S. 159 (1995) 5

Co.
71. R v. Kelly [2008] 2 All ER 840: 10
MANU / UKCR / 0006 /
2008
72. R.M.D. Chamarbaugwala v. Union AIR 1957 SC 628: 1957 10
of India SCR 930 ¶ 3
73. R.M.D. Chamarbaugwala v. Union AIR 1957 SC 628: 1957 14
of India SCR 930 ¶ 5
74. Rahke v. United States 180 F. Supp. 576, 578 14
(Ct. Claims 1960)
75. Raj Gopal v. State of Tamil Nadu (1994) 6 SCC 632 ¶ 28 6
76. Reckitt & Colman Products Ltd v. HL 1990 5

Borden Inc.
77. Rex v. Fortier 13 Q.B. 308 10
78. Ruben v. Keuper 127 A.2d 906, 907 (N.J. 13

Super. Ct. Ch. Div. 1957)
79. Ryan Hart v. Electronic Arts Inc. 717 F.3d 141 (3rd Cir. 3
2013)
80. S. Khushboo v. Kanniammal AIR 2010 SC 3196 14
81. Saligram v. Emperor AIR 1933 Calcutta-8 13
82. Seattle Times Co. v. Tielsch 495 P.2d 1366, 1367 13

(Wash. 1972)
83. Shoolbred v. Roberts [1899] 2 Q. B. 569 14
84. Sim v Heinz & Co Ltd (1959) 1 WLR 313 1959 7
85. Smith et al. v. Commonwealth of 275 U.S. 509 12

Kentucky
86. Stacy L. Dogan & Mark A. Lemly Supra n. 15, 1192 7
87. Standerly R. Lyngkhoi v. State of MANU/GH/0714/2011 13

Meghalaya
88. State of Andhra Pradesh v. K. AIR 1968 SC 825 12
Satyanarayana
89. State of Bombay v. R.M.D. AIR 1957 SC 699 ¶ 35 14
Chamarbaugwala

P a g e | viii
WITH MEMO PUNDITS
90. State v. Am. Holiday Ass'n. 727 P.2d 807, 812 (Ariz. 13
1986)
91. State v. Gupton 30 N.C. 271 11
92. State v. Thompson 60 SW 1077 12
93. Stoddart v. Sagar 64 LJ MC 234 12
94. The Century 21 Real Estate v. 425 F.3d 211, No. 03- 4
Lendingtree Inc. 4700 (3rd Cir. October
11, 2005).
95. The Director General of Police State MANU/TN/0741/2012 12
of Tamil Nadu Chennai and Ors. v.
Mahalakshmi Cultural Association
96. Titan Industries v. M/S Ram Kumar MANU/DE/2902/2012¶ 1
Jwellers 14 (III)
97. Tote Investors Ltd. v. Smoker (1967) 3 All ER 242 12
98. Trafix Devices v. Mktg Displays 532 U.S. 159 (1995) 5
99. Tulsi Ram vs. State of Rajasthan MANU/RH/1404/2002 12
100. Utah State Fair Assn. v. Green (1926) 68 Utah 251 12
101. Varun Gumber v. Union Territory of 2017 Cri.L.J. 3827 9, 10

Chandigarh
102. ICC Development (International) 2003 (26) PTC 245. 19
Ltd. v. Arvee Enterprises and Anr.
103. Nestle India v. Mood Hospitality (2010) ILR 3 (Del.) 560. 20
104. Hem Corporation v. ITC Limited 2012 (52) PTC 600 20

(Bom.).
II. LIST OF STATUTES

SL. NO. STATUTES PAGE NO.
1. The Constitution of India, 1950 Passim
2. The Trade Marks Act, 1999 Passim
3. The Copyrights Act, 1957 Passim4
4. The Code of Civil Procedure, 1908 Passim
5. The Delhi High Court Act, 1966 Passim
6. The United States Constitution, 1789 Passim
7. The Public Gambling Act, 1867 Passim

P a g e | ix
WITH MEMO PUNDITS
8. The Delhi Public Gambling Act, 1955 9
III. LIST OF BOOKS CITED

SL. NO. BOOKS PAGE NO.
1. WILLIAM CORNISH, Cases and Materials on Intellectual Passim

Property (5th Edition)
2. P. NARAYANAN, Intellectual Property Law, (Eastern Law Passim
House, 3rd Edition)
3. DR. S.V. DAMODAR REDDY, Intellectual Property Rights, Passim
Law and Practices, (Asia Law House, 1st Edition)
4. RAMA SARMA, Commentary On Intellectual Property Laws, Passim.
(Lexis Nexis, 1st Edition)
5. DR V K AHUJA, Law Relating to Intellectual Property Rights, Passim
(Lexis Nexis, 3rd Edition)
IV. LIST OF ONLINE DATABASES

SL. NO. ONLINE DATABASES
1. Westlaw (www.westlawindia.com)
2. Manupatra (www.manupatra.com)
3. SCC Online (www.scconline.in)
4. JSTOR (www.jstor.org)
5. The Judgement Information System (http://www.judis.nic.in) (Supreme Court of

India Official)

Page |x
WITH MEMO PUNDITS
STATEMENT OF JURISDICTION
M.S. DHENIER & VIRAT KELLY

v.
AVENGERS MEDIA and ENTERTAINMENT Pvt. Ltd.
THE PLAINTIFFS HAVE APPROACHED THIS HON’BLE HIGH COURT OF NEW TELLY U/S 20
OF CODE OF CIVIL PROCEDURE, 1908 R/W S. 5 OF DELHI HIGH COURT ACT, 1966 AND S.
134 OF TRADE MARKS ACT, 1999. THE DEFENDANT HUMBLY SUBMITS TO THE
JURISDICTION OF THE HON’BLE COURT WHICH HAS BEEN INVOKED BY THE PLAINTIFFS.
HOWEVER, THE DEFENDANT RESERVES THE RIGHT TO CHALLENGE THE SAME.
M.S. DHENIER & VIRAT KELLY
V.
UNION OF INTIA & OTHERS
THE PETITIONERS HAVE APPROACHED THIS HON’BLE HIGH COURT UNDER ARTICLE 226 OF
THE CONSTITUTION OF INTIA, 19501. THE RESPONDENTS HUMBLY SUBMIT TO THE
JURISDICTION OF THE HON’BLE COURT WHICH HAS BEEN INVOKED BY THE PETITIONERS.
HOWEVER, THE DEFENDANT RESERVES THE RIGHT TO CHALLENGE THE SAME.
T HE PRESENT MEMORANDUM SETS FORTH THE FACTS , CONTENTIONS AND

ARGUMENTS IN T HE PRESENT CASE .
1
Constitution of Intia, 1950 is pari materia to the Constitution of India, 1950.

P a g e | xi
WITH MEMO PUNDITS
STATEMENT OF FACTS
1. DEVELOPMENT OF APL & VISION 11: Anticipating a growth in the domain of

‘fantasy games’, Mr. Tony Stark, CEO of Avengers Media and Entertainment Pvt. Ltd. (APL)
developed a game called Vision 11, an online multi-player fantasy cricket game playable in
mobile in which users act as managers of their own team, select and build their own virtual
cricket team. A winner of a Vision 11 round is the user whose team gets the highest points.
Each user is charged with a fixed administrative fee for participation in each round.
2. APPROACH TO BCCI & THEIR DENIAL: APL wanted to use pictures/figures/names
of real-life players and logos of the tournament/leagues and teams for Vision 11’s script and
therefore approached BCCI, cricket boards of other jurisdictions and the relevant cricket
leagues for license to use their logos. It also approached other Intian and foreign players for
use of their name. However, APL was refused license and permission of any kind.
3. APL’s CREATION OF ITS OWN TEAMS AND LOGOS: APL after receiving refusal
and denial resorted to make its own team and logos for 10 International teams and IPL(Intia
Pro League). Instead of real-life images or pictures, it used illustrations of players which were
created by skilled digital sketch-artists who are APL’s employees and therefore APL claimed
copyrights over the illustrations. It used initials of player’s name and their jersey number for a
player code. For instance, player code of M.S. Dhenier was MS7 and Virat Kelley was VK18.
APL used statistic in different stadia, current form and other causative factors for playing. APL
made sure no official team names, logos or brand logos were used.
4. LAUNCH OF APL & ITS POPULARITY: After APL was finally launched, within a span
of three months it had over one lakh registered users and to promote the game, APL used an
one-line catcher. “Come and Play with MS7 & VK18 on our app.” It was promoted in various
social media platforms and newspapers, hoardings in several cities.
5. INSTITUTION OF CASE BY M.S. DHENIER & VIRAT KELLY: These posters caught
BCCI’S attention and being informed by BCCI, the legal departments of M.S. Dhenier and
Virat Kelly initiated a case with respect to the infringement of their personality rights and
passing off and in addition to injunctive relief, they sought Rs. 2 Crores in the form of damages.
They also filed a PIL challenging the legality of APL and urged that it amounted to gambling
under the Public Gambling Act, 1867. Since, both the case were connected, the Court clubbed
the cases for a joint hearing.

P a g e | xii
WITH MEMO PUNDITS
ISSUES RAISED
~ISSUE I~
WHETHER APL’S USE OF THE PLAYER ILLUSTRATIONS IN CONJUNCTION WITH

THE PLAYER CODES AMOUNTS TO INFRINGEMENT OF M.S. DHENIER AND
VIRAT KELLY’S PERSONALITY RIGHTS AND PASSING OFF?
~ISSUE II~
WHETHER, VISION 11 AMOUNTS TO GAMBLING UNDER THE PUBLIC

GAMBLING ACT, 1867?

P a g e | xiii
WITH MEMO PUNDITS
SUMMARY OF ARGUMENTS

OFF?
It is most humbly and respectfully submitted before this Hon’ble High Court that APL’s use of
the player’s illustrations in conjunction with the player codes does not, in any case, amounts to
infringement of personality rights and passing off because APL’s use of the players’
illustrations and players’ codes doesn’t infringe petitioner’s personality rights; The petitioners
have failed to establish the test of validity and identifiability; APL has copyright over the
illustrations of MS7 and VK18 and several other player’s illustrations used in Vision 11; The
APL has complied with the doctrine of “modicum of creativity”; The Vision 11 fantasy game
complies with the “doctrine of transformative use”; The Vision 11 app is protected under the
“doctrine of nominative fair use”; The “functionality doctrine” brings the case in favour of
the defendant-company; The APL has not infringed petitioner’s right of Passing off; The
Personal Information allegedly used by the defendant-company are present in Public Records
and The Plaintiffs are not entitled to get any protection under Trademark Act and Copyright
Act.

PUBLIC GAMBLING ACT, 1867?
It is most humbly and respectfully submitted that the Vision 11 is not conducting any illegal
operation of gambling/betting/wagering in the guise of “online fantasy sports gaming” and
doesn’t amount to gambling under the Public Gambling Act, 1867 because The users have to
enter into a mandatory agreement and accept the contractual terms and conditions before using
the app; The Vision 11 app is preponderantly a game of “skill” rather than “chance”; Material
and considerable skills are required by the user in 'drafting' of a virtual team and 'playing'
fantasy sports game; The element of skill is the dominating factor in determining the result of
the game; The Vision 11 app comes under the ambit of ‘game of mere skill’; The instant fantasy
cricket game passes the ‘dominant factor test’, or ‘predominance test’; The points are attributed
in a transparent and verifiable manner; The users are charged with a fixed administrative fee
for participation in each round and The element of equal chance of gain or loss is absent

P a g e | xiv
WITH MEMO PUNDITS
ARGUMENTS ADVANCED

OFF?
It is most humbly and respectfully submitted before this Hon’ble High Court that APL’s use of
the player’s illustrations in conjunction with the player codes does not, in any case, amounts to
infringement of personality rights and passing off because:-
[I.A] APL’s use of the players’ illustrations and players’ codes doesn’t infringe
petitioner’s personality rights.
It is humbly contended that the APL’s use of the player’s illustrations and players’ codes
doesn’t infringe petitioner’s personality rights because:-
[I.A.1] The petitioners have failed to establish the test of validity and identifiability.
[¶.1] It is humbly asserted that to attract and to determine the liability for infringement of the
‘right to publicity’ which is analogous to the personality rights, the Hon’ble Delhi High Court
in the case of Titan Industries2 has laid down two basic elements i.e. test of validity and
identifiability. The test of validity states that the plaintiff should own an enforceable right in
the identity of persona of a human being and the test of identifiability states that the celebrity
must be identifiable from defendant’s unauthorized use. Further, in the case of C.B.C.
Distribution & Marketing v. MLBAM,3 the Hon’ble Court held that the use of the player’s
performance records and the name in conjunction with a fantasy sports league did not violate
the player’s right to publicity. It was contended that the player’s names and statistics were
being used without the player’s consent. However, the Court opined that it wasn’t used to a
commercial advantage as such advantage is de minimis and the use of the players’ name and
statistics were not a symbol of the player’s identity.
[¶.2] The actual names of real-life cricketers weren’t used in the fantasy cricket game offered
by Vision 11. Rather, it used a player code for each cricketer which was a combination of
initials of the real-life cricketer and their jersey numbers. APL also made sure that no official
2
Titan Industries v. M/S Ram Kumar Jwellers, MANU/DE/2902/2012: 2012 (50) PTC 486 (Del), ¶ 14 (III).
3
C.B.C. Distribution & Marketing v. MLBAM, 505 F.3d 818 (8th Cir. 2007)

Page |1
WITH MEMO PUNDITS
team names, team logos or brand logos were used.4 Therefore, in the instant case, the
petitioner’s good will and reputation isn’t jeopardised or commercialised and the facets of the
test of validity and identifiability are not fulfilled as certainly MS7 and VK18 are not their
identifying features because the players’ name and statistics are not a symbol of the player’s
identity.
[I.A.2] APL has copyright over the illustrations of MS7 and VK18 and several other
player’s illustrations used in Vision 11.
[¶.3] It is humbly submitted that the illustrations of the cricketers as used by APL were created
by skilled digital sketch artists who are APL’s employees and therefore would come under the
ambit of “artistic work” which shall include a painting, a sculpture, a drawing, an engraving
or a photograph, whether or not any such work possesses artistic quality, a work or architecture,
and any other work of artistic craftsmanship as stated in the Section 2(c) of the Copyright Act
and therefore the copyright shall subsist in this original artistic work as per Section 13 (1) (a)
of the Act and hence the APL would be the first owner of this copyright being the author of the
work as provided under Section 17 of the Act which stipulates that the author of the work shall
be the first owner of the copyright therein. As APL has already obtained copyright over the
illustrations of cricketers5 after adhering to the due registration process as mentioned in
Chapter X, it would be highly unreasonable, unjustified and vexatious to claim that APL’s
adoption of the illustrations is mala-fide rather it is vice versa.
[I.A.3] The APL has complied with the doctrine of “modicum of creativity”.
[¶.4] It is humbly contended that as the APL holds copyright over the cricketer’s illustrations
as already discussed above, it can be safely inferred that APL has absolutely complied with the
doctrine of ‘modicum of creativity’6 which prompts ‘creative originality’ and stipulates that
originality subsists in a work where a sufficient amount of intellectual creativity and judgment
has gone into the creation of the work.
[¶.5] Further, the Hon’ble Supreme Court of India in the case of Eastern Book Company v.
D.B. Modak,7 has introduced the notion of “flavour of minimum requirement of creativity”
and held that to establish copyright, the creativity standard applied is not that something must
4
Moot Proposition, Pg. 2, ¶ 3.
5
Moot Compromis, Pg. 2, ¶ 3; Clarification, Q.10’s answer.
6
Feist Publication Inc. v. Rural Telephone Service, 499 U.S. 340, 345 (1991).
7
(2008) 1 SCC 1.

Page |2
WITH MEMO PUNDITS
be novel or non-obvious, but some amount of creativity in the work i.e., a minimum level of
creativity is required for creativity protection and to claim a copyright.
[I.A.4] The Vision 11 fantasy game complies with the “doctrine of transformative use”.
[¶.6] It is humbly asserted that in the case of Ryan Hart v. Electronic Arts Inc.8 the Hon’ble
United States Court Of Appeals for the Third Circuit while relying upon a dictum of the
Hon’ble Supreme Court of the United States in Brown v. Entertainment Merchants
Association9 has accepted the ‘transformative use test’ which was first introduced by the
California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc.10 and has
held that the works that are deemed to possess significant transformative elements are less
likely to interfere with the individual’s economic interest, and thus are not violative of their
image rights or publicity rights. When the test relies on the word "transformative", it uses the
same sort of terminology used by the courts in the analysis of the first of four factors relevant
under § 10711 for the standard "fair use" defence test in copyright law.12
[¶.7] Further, the ‘doctrine of transformative use’ balances the First Amendment rights
(freedom of expression) of a defendant against a celebrity’s right of publicity by deciding
whether a new work supersedes the objects of the original work creations and it effectively
restricts the right of publicity claims to a very narrow universe of expressive works. The main
test that was laid down was “whether a product containing a celebrity’s likeness is so
transformed13 that it has become primarily the defendant’s own expression, meaning or
message.”
[¶.8] Furthermore, after placing reliance on the intricate meaning of the ‘doctrine of
transformative use’ as enunciated by the above mentioned case laws, it can be safely concluded
that the illustrations of the cricketers and player codes for such illustrations as created by APL
(Avengers Media and Entertainment Pvt. Ltd.) possess significant transformative elements and
is less likely to interfere with the petitioner’s economic interest. Therefore, the illustrations and
player codes are in accordance with the ‘transformative use test’ and would come under the
ambit of ‘fair use’. Hence, the alleged illustrations and player codes are not violative of
petitioner’s image rights or publicity rights.
8
Ryan Hart v. Electronic Arts Inc., 717 F.3d 141 (3rd Cir. 2013).
9
Browns v. Entertainment Merchants Association, 564 U.S. 786 (2011).
10
Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001)
11
Copyright Act of 1976, 17 U. S. C. § 107.
12
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994); Castle Rock Entm't, Inc. v. Carol Publ'g Grp.,
Inc., 150 F.3d 132, 141-43 (2d Cir. 1998).
13
Hoffman v. Capital Cities/ABC. Inc., 255 F.3d 1180, 1186 (9th Cir. 2001); ETW Corp. v. Jireh Publ’g, Inc., 332
F.3d 915, 937-38 (6th Cir. 2003)

Page |3
WITH MEMO PUNDITS
[I.A.5] The Vision 11 app is protected under the “doctrine of nominative fair use”.
[¶.9] It is humbly submitted that the use of the illustrations of cricketers and the player codes
for them can evade legal liability as it comes under the ambit of ‘nominative fair use’. The
Hon’ble Madras High Court in the case of Consim Info Pvt. Ltd v. Google India Pvt. Ltd14
while referring the cases of New Kids on the Block v. News Am. Publishing Inc.15, has held
that, “A use is considered to be a permitted nominative fair use, if it meets three requirements,
viz., (i) the product or service in question must be one not readily identifiable without use of
the trademark; (ii) only so much of the mark or marks may be used as is reasonably necessary
to identify the product or service; and (iii) the user must do nothing that would, in conjunction
with the mark, suggest sponsorship or endorsement by the trademark holder. Further, the Third
Circuit Court of U.S.A in the case of The Century 21 Real Estate v. Lendingtree Inc.16 laid
down the factors that are needed to be considered for nominative fair use. They are (i) Degree
of consumer care; (ii) Length of time defendant has used plaintiff’s mark without evidence of
actual confusion; (iii) Intent of the defendant in adopting the mark and (iv) Evidence of actual
confusion.17
[¶.10] Furthermore, Section 30 (2) (d) of the Trade Mark Act, 1999 provides that a nominative
fair use of a trademark by a third party is not an infringement of a registered trademark.
However, in the instant case the illustrations and player codes are not registered by the
petitioners as trademark and their use by APL is at worst nominative in nature as the app in
question is not at all readily identifiable without them and to boost its social and print media
promotion, it decided to design posters of its two most popular illustrations of which it had
copyright and had a one-line catcher phrase- “Come and play with MS7 & VK18 on our app”18,
which qualifies as a reasonable necessity to identify the app and promote the game. Also, their
use by APL doesn’t, in any circumstances, suggest that the Vision 11 app is sponsored or
endorsed by the petitioners and they are associated with it. Moreover, the APL has not used
any official logos, cricketers’ real names, or their pictures 19 and there is no evidence of actual
confusion on record to show that the consumers were confused by the APL’s use of player
codes and illustrations and have exercised substantial care while using the app. Therefore,
without any evidence of confusion in the minds of the users and normative fair use, it can be
14
(2010) 6 CTC 813.
15
971 F.2d 302 (9th Cir. 1992)
16
The Century 21 Real Estate v. Lendingtree Inc., 425 F.3d 211, No. 03-4700 (3rd Cir., October 11, 2005).
17
Playboy Enterprises Inc. v. Welles, 279 F.3d 796 (9 th Cir. 2002).
18
Moot Proposition, ¶4.
19
Moot Proposition, Pg. 2, ¶ 5.

Page |4
WITH MEMO PUNDITS
safely concluded that the petitioner’s claim of violation of personality rights and right of
passing off doesn’t, in any case, sustain.
[I.A.6] The “functionality doctrine” brings the case in favour of the defendant-company.
[¶.11] It is humbly contended that the ‘functionality doctrine’ bars protection for something
that is essential to the use or purpose of the article or which affects its cost or quality, to avoid
an adverse effect on competition and to promote competition by protecting a company’s
reputation, from inhibiting legitimate competition by allowing a producer to control a useful
product feature. With respect to the functionality doctrine it has been observed generally that,
a product feature is functional, and cannot serve as a trademark, if it is essential to the use or
purpose of the article or if it affects the cost or quality of the article, 20 indicating that exclusive
use of the feature would put competitors at a significant disadvantage unrelated to their
reputations and if the trademark law were to protect such functional features, “the original
producer would be able to establish a monopoly in useful goods.”
[¶.12] Further, in India this doctrine finds mention in Section 9(3) of the Trade Marks Act,
1999 and nobody can claim monopoly or trademark in player codes for each cricketer which is
a combination of the initials of the real-life cricketer and their jersey numbers as this is a
functional feature of the fantasy cricket game and is essential to the use and purpose of it and
without which the cost and quality of the game will be affected. Furthermore, the exclusive use
of such feature by other competitors and unreasonable restriction on the use of it will put the
respondent-company in a disadvantageous position and therefore the use of player codes (MS7
& VK18) by APL is protected under functionality doctrine and should be unrestricted in any
manner and hence doesn’t violate the personality right of the petitioners.
[I.2] The APL has not infringed petitioner’s right of Passing off.
[¶.13] It is humbly asserted that the Passing off means that the defendant by making a false
representation sells goods, with the intention to deceive the purchaser and the plaintiff believes
that the goods being sold by are of the defendant. The three fundamental elements often referred
to as the Classic Trinity as restated by the House of Lords in the case of Reckitt & Colman
Products Ltd v. Borden Inc.21 were (i) Goodwill owned by a trader; (ii) Misrepresentation and
(iii) Damage to Goodwill. Lord Diplock in the case of Erven Warnink v. Townend22, gave the
20
Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 (1982); Qualitex Co. v. Jacobson Products
Co., 514 U.S. 159 (1995); Trafix Devices v. Mktg Displays, 532 U.S. 159 (1995).
21
Reckitt & Colman Products Ltd v. Borden Inc., HL 1990.
22
Erven Warnink v. Townend, (1979) AC 731.

Page |5
WITH MEMO PUNDITS
modern characteristics of a passing off action which are (i) Misrepresentation; (ii) Made in the
Course of trade by a person; (iii) The ultimate consumers of goods or services or to prospective
customers of his or supplied by him; (iv) that is calculated as such to injure the goodwill or
business of another trader; (v) that causes actual damage to the goodwill or business of the
trader by whom the action is brought.23
[¶.14] However, the above stated ingredients to claim an action of passing off are not attracted
in the present case as there is nothing on record to prove that the defendant-company is trying
to pass-off its Vision 11 app as one owned by the petitioners as there is no representation of
both the petitioners to the public, be it their picture, photo or even poster, both in the
defendant’s fantasy game app as well in its social media pages, so as to cause any confusion in
the minds of the public that the petitioners are associated with the Vision 11 fantasy cricket
game.24 Further, neither did the plaintiff cricketer’s names were commercialised, nor were there
any loss of goodwill in their field. Although, in the instant case, famous personalities and
widely known public figures are involved, unless unjust enrichment on a celebrity’s
Personality25 Rights are proven, the suit would fail to stand the test of “publicity rights”.
Furthermore, publicly known facts and images of public figures are not protected.26
[I.3] The Personal Information allegedly used by the defendant-company are present in
Public Records.
[¶.15] It is humbly submitted that the Hon’ble Supreme Court in the case of Raj Gopal v. State
of Tamil Nadu27 has held that the citizen has the right (also described as the 'right to be let
alone) to safeguard the privacy of his own, his family, marriage, procreation, child-bearing and
education among others and that nothing concerning these could be published without consent,
except if a person voluntarily thrusts himself into a controversy or any of these matters becomes
part of public records. Further, protection of personal information from non-state third parties
has not been adequately addressed in Indian jurisprudence.
[¶.16] Furthermore, the ‘Canadian PIPEDA’ is a good source to draw inspiration from with
regard to a statutorily protected right of personal information. It defines 'personal information'
23
Cadila Health Care Ltd. v. Cadila Pharmaceuticals, 2001 PTC 541 (SC).
24
Gautam Gambhir v. D.A.P and Co. and Ors., (13.12.2017 - DELHC) : MANU/DE/5440/2017, ¶ 9.
25
ICC Development (International) Ltd. v. Arvee Enterprises and Anr., 2003 (26) PTC 245.
26
Bala Krishnan v. R Kanagavel Kamaraj and others, (2000) (3) Ar L R 622; Phoolan Devi v. Shekar Kapoor and
others, (1995) P T C 46.
27
(1994) 6 SCC 632.¶ 28.

Page |6
WITH MEMO PUNDITS
as "information about an identifiable individual, but does not include the name, title or business
address or telephone number of an employee of an organization"28.
[¶.17] In the instant case the Vision 11 fantasy cricket game has used the cricketers’ statistics
to create new data that is customized to its leagues and these statistics are not used to attract
attention to the fantasy league, rather they are used to compute data. Since the statistics are
transformed to create new data the fantasy sports could take the defence of modicum of
creativity standard test to establish the novelty and innocuous nature of their work. Therefore,
the statistics of the players used by Vision 11 would neither fall under the category of
copyright violation nor under trademark violation as they are easily available in public
domain and hence the petitioners cannot claim the violation of their personality rights and
remedy of passing off.
[I.4] The Plaintiffs are not entitled to get any protection under Trademark Act and
Copyright Act.
[¶.18] It is humbly contended that vide Section 13 of the Indian Copyright Act, 1957,
copyright protection is conferred on literary works, dramatic works, musical works, artistic
works, cinematograph films and sound recordings. Statistics of players, in all probability,
would not find expression the way copyrightable works under the Copyright Act, 1957 would
thus making it difficult to bring statistics of players within the fold of copyright law. In Sim v.
Heinz & Co. Ltd.29, the Hon’ble Court said that copyright is neither granted to voice, likeness
nor other identifiers of a persona. For the petitioners to pursue an action for copyright
infringement, an individual must be able to show the ownership of a copyright in the image
and copying of that image. Similarly, it is difficult to challenge a violation of the personality
rights on the basis of the consumer confusion rationale, which remains central to trademark
law30 as Section 2 (1) of the Indian Trade Marks Act, 2000, allows registration of any ‘sign
capable of distinguishing goods and services of one person from another, any word (including
personal names), design, numeral and shape of goods or their packaging’ as trademark 31 but
not to the initials of a name and Jersey Number and therefore cannot provide any protection to
them as they are not registered.
28
Personal Information Protection and Electronic Documents Act, S.C. 2000, ch.5, §2 (Can.).
29
Sim v Heinz & Co Ltd, [1959] 1 WLR 313 1959.
30
Nestle India v. Mood Hospitality, (2010) ILR 3 (Del.) 560.
31
Hem Corporation v. ITC Limited, 2012 (52) PTC 600 (Bom.).

Page |7
WITH MEMO PUNDITS

PUBLIC GAMBLING ACT, 1867?
It is most humbly and respectfully submitted that the Vision 11 is not conducting any illegal
operation of gambling/betting/wagering32 in the guise of “online fantasy sports gaming” and
doesn’t amount to gambling under the Public Gambling Act, 1867 because:-
[II.A] The users have to enter into a mandatory agreement and accept the contractual
terms and conditions before using the app.
[¶.19] It is most humbly contended that the fantasy cricket game offered by Vision 11 through
the mobile application has published a detailed set of terms and conditions to govern the user's
account and interaction with the app and the services offered by it. A user's affirmative
acceptance and agreement to abide by the Terms and Conditions of the Vision 11 app is a pre-
condition for the user's registration of an account with this fantasy cricket game. Therefore,
Vision 11 is transparent and open in its interaction with its users and this can be inferred from
the fact that the game in a span of three months had over one lakh registered users and it clearly
means that the users have to go through a mandatory registration process before using the app
and it is not deceiving its users.33
[II.B] The Vision 11 app is preponderantly a game of “skill” rather than “chance”.
It is most respectfully asserted that the Vision 11 app is preponderantly a game of skill34
because:-
[II.B.1] Material and considerable skills are required by the user in 'drafting' of a
virtual team and 'playing' fantasy sports game.
[¶.20] It is most humbly contended that in Vision 11 fantasy cricket game, users evaluate,
select, build and act as managers of their own virtual cricket teams 35 and points are attributed
to each user on the basis of the real cricketer’s selection36 and therefore a user's virtual team
cannot be entirely or substantially consists of cricketers from a single real-world team. This
stipulation ensures that the user has to exercise greater skill in acquainting himself with the
32
Section 65 B (15) of the Finance Act, 1994; Public Prosecutor v. Veraj Lal Sheth, AIR 1915 Mad 164.
33
Moot Compromis, Pg. 2, ¶ 4.
34
Babu Bhai and Ors v. State of Raj. and Ors., S.B. Cr. Misc. Pet. No. 508/97 decided on 9.11.1997.
35
Moot Compromis, Pg. 1, ¶ 2.
36
Moot Compromis, Pg. 1, ¶ 2 (b).

Page |8
WITH MEMO PUNDITS
cricketers of both participating real-world teams in a single match and prevents a user from
creating a circumstance resembling the act of betting on the performance of a single team to
win the match/league.
[¶.21] Further, the drafting of a virtual team involves the exercise of superior knowledge,
judgement and attention as the users are expected to consider, keeping aside any bias for an
individual or a team, the current form of the cricketer, his relative worth as well as his strengths
and weaknesses. Users are given access to anticipated and real time statistics of the cricketers’
performance from past matches, which has to be assessed in the light of factors such as age,
statistical trends, current form, injuries, the cricketer's statistics in various stadia and against
different opponents, and other material causative factors that will have a bearing on the
cricketer's performance as a whole.37 Selection of 'captain' and 'vice-captain' is crucial in the
success of the virtual team as double of the points accumulated by the designated Captain and
1.5 times of the points accumulated by the designated Vice-Captain are added to the overall
points-tally of such user's virtual team. 38
[¶.22] Therefore, the user must develop and devise a strategy to create a team that is balanced
in manner consistent with the user's overall strategy with a focus on winning fantasy points.
Hence, the platform require material and considerable skills in terms of 'drafting' and 'playing'
which are the determinative factors in the results of the game and winning outcomes thereby.39
[II.B.2] The element of skill is the dominating factor in determining the result of the
game.
It is most respectfully contended that the element of skill is the dominating factor in
determining the result of the game because:-
[II.B.2.i] The Vision 11 app comes under the ambit of ‘game of mere skill’.
[¶.23] It is humbly submitted that the concept of ‘game of mere skill’ is enunciated in Section
12 of Public Gambling Act, 186740 (“Central Gambling Act”) & Section 13 of Delhi Public
Gambling Act, 195541. Section 12 of the Central Gambling Act creates a distinction between
betting on ‘games of chance’ and ‘games of skill’42 and exempts the application of the said Act
37
Moot Compromis, Pg. 1, ¶ 2 (a).
38
¶ 20, Varun Gumber v. Union Territory of Chandigarh, 2017 Cri.L.J. 3827.
39
Boardwalk Regency Corp. v. Att'y Gen. of N.J., 457 A.2d 847, 850 (N.J. Super. Ct. Law Div. 1982).
40
Act No. 3 of 1867.
41
Act No. 9 of 1955.
42
Rex v. Fortier, 13 Q.B. 308; Commonwealth v. Club Caravan, Inc., 571 N.E.2d 405, 406-7 (Mass. App. Ct.
1991).

Page |9
WITH MEMO PUNDITS
to “any game of mere skill”. As per the Seventh Schedule to the Constitution of Intia (Entries
34 and 62 of List II), the state governments have been authorised to make laws on betting and
gambling.43 Therefore, the New Telly44 by way of the Delhi Public Gambling Act, 1955 and
Section 13 inserted for applicability to the National Capital Territory of Telly which provides
exemption of games of mere skill. If even a scintilla of skill is required for success 45 the
competition could not be regarded as of a gambling nature.46
[¶.24] The broader and clearer definition and interpretation of the word ‘mere skill’ was
articulated by the Venkatarama Ayyar J. of the Hon’ble Supreme Court in the case of R.M.D.
Chamarbaugwala v. Union of India47 wherein the Hon’ble Court interpreted the phrase ‘game
of mere skill’ to mean “preponderantly a game of skill” in detailed orders and has held that
despite there being an element of chance, if a game is “preponderantly a game of skill”, in
essence, the skill dominates over the element of luck/chance it would nevertheless be a game
of mere skill.48
[¶.25] The instant issue of legality of fantasy sports game in India has been squarely dealt by
the Punjab and Haryana High Court in the case of Varun Gumber v. Union Territory of
Chandigarh49, the High Court of Bombay in the case of Gurdeep Singh Sachar v. Union of
India & Ors.50 and the High Court of Rajasthan in the case of Chandresh Sankhla v. State of
Rajasthan51 wherein the Hon’ble Courts have considered the similar question with respect to
the game “Dream 11” and have held in favour of the respondent – company that “Dream 11”
game does not involve any commission of offence of 'gambling' or 'betting' or 'wagering' even
if the definition contained in the Finance Act, 199452 is taken into consideration. Further,
unlike betting, winning or losing in fantasy sports is not dependent on any particular team
winning or losing in the real world. A challenge was filed against Varun Gumber’s Case order
43
Constituent Assembly Debates, Official Report, Vol IX, Sixth Reprint, Reprinted by Lok Sabha Secretariat,
New Delhi, 2014; H. Anraj v. State of Maharashtra, AIR 1984 SC 781.
44
New Telly is a fictitious territory with laws in pari materia with the National Capital Territory of Delhi, India.
45
R v. Kelly, [2008] 2 All ER 840: MANU / UKCR / 0006 / 2008.
46
Philip D. Murphy, Governor of New Jersey v. National Collegiate Athletic Association etc. (case no. 16-476
and 16-477) decided by the Supreme Court of the United States on 14.05.2018.
47
AIR 1957 SC 628: 1957 SCR 930, ¶ 3.
48
Andhra Pradesh v. K. Satyanarayana, AIR 1968 SC 825, ¶ 12; Dr. K.R. Lakshmanan v. State of Tamil Nadu,
(1996) 2 SCC 226, ¶ 17.
49
2017 Cri.L.J. 3827: 2017 (4) RCR (Criminal) 1047; Judgement dated 18 April 2017 in CWP No. 7559 of 2017.
50
MANU/MH/1451/2019, ¶s 8 & 17; Judgment dated 30 April 2019 in Criminal P.I.L. No. 22 of 2019.
51
2020 SCC OnLine Raj 264, ¶s 05, 06, 10 & 12; Judgment dated 14 February 2020 in D.B.C.W.P. No. 6653 of
2019.
52
Act No. 32 of 1994.

P a g e | 10
WITH MEMO PUNDITS
and the same was dismissed by the Supreme Court on September 15, 2017.53 The issue of the
legitimacy of fantasy sports is no longer open for debate and therefore is no more res integra.
[¶.26] Therefore whether a fantasy sport game is a game of chance or a game of skill54 is a
question of fact based on the modalities of each game55 and to be decided on the basis of facts56
and circumstances of each case.57 The facts and circumstances enunciated above evidently and
patently show beyond doubt that the fantasy cricket game i.e., Vision 11 is a game of mere skill
as the success in this fantasy game depends on a considerable58 and substantial degree
(mathematically, more than 50%) of skill59 and therefore doesn’t come under the ambit or
purview of the regulations prohibiting gambling60 and hence is it is legal to offer and play paid
fantasy sports games in India.61
[II.B.2.ii] The instant fantasy cricket game passes the ‘dominant factor test’, or
‘predominance test’.
[¶.27] It is respectfully submitted that the Hon’ble Supreme Court in the cases of Andhra
Pradesh v. K. Satyanarayana62 and Dr. K.R. Lakshmanan v. State of Tamil Nadu63 has
recognized that no game is a game of pure skill alone and almost all games involve an element,
albeit infinitesimal, of chance and has by and large adopted the test followed by the U.S. courts
known as the ‘dominant factor test’64, or ‘predominance test’65 which requires assessment
and determination of whether chance or skill is the dominating factor in determining the result
of the game66. Courts have used the ‘predominance of skill test’ to determine that horse
53
Supreme Court of India Order dated September 15, 2017, Record of Proceedings in SLP Diary No. 27511/2017.
54
Pleasantime Products v. Commissioner of Central Excise, Mumbai-I, (2010) 1 SCC 265.
55
Commonwealth v. Two Elec. Poker Game Machines (Two Elec.), 465 A.2d 973, 977 (Pa. 1983)
56
MJ Sivani v. State of Karnataka, (1995) 6 SCC 289: AIR 1995 SC 1770.
57
Manoranjithan Manamyil Mandram v. State of Tamil Nadu, AIR 2005 Mad 261.
58
Bimalendu De and Ors. v. Union of India (UOI) and Ors., MANU/WB/0232/2000, ¶ 12.
59
Coles v. Odhams Press Ltd., (1936) 1 KB 416: 1935 All ER Rep 598.
60
Section 12, the Public Gambling Act 1867.
61
Dr. K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153, ¶ 23; Fantasy Sports Properties, Inc. v.
Sportsline.com, Inc., 287 F.3d 1108 (U.S. Ct. App. 2002).
62
(1968) 2 SCR 387: AIR 1968 SC 825.
63
(1996) 2 SCC 226, ¶s 18 & 19.
64
State v. Gupton, 30 N.C. 271; In re Allen, 377 P.2d 280, 281 (Cal. 1962).
65
People v. Turner, 629 N.Y.S.2d 661, 662 (N.Y. Crim. Ct. 1995).
66
People ex rel. Ellison v. Lavin, 71 N.E. 753, 755 (N.Y. 1904).

P a g e | 11
WITH MEMO PUNDITS
racing67, card games such as rummy68, poker69, foot racing, boat racing70, football71,
motorbike racing and baseball72 are ‘games of mere skill’73 and judgment and not a game of
chance.74
[¶.28] Further, the fantasy game of Cricket as provided by Vision 11 is not entirely a game of
chance or luck because it requires a preponderant amount of skill75, judgment and discretion of
the participants while drafting their fantasy team76. Furthermore, the users draft teams based
on their knowledge of cricket (gathered through systematic research), attention, training,
experience and adroitness regarding the game. Therefore, the game provided by Vision 11
passes the ‘dominant factor test’, or ‘predominance test’ as skill is the dominating factor in
determining the result of the game77 and it should be held to be “mainly and preponderantly a
game of skill”. The fantasy cricket game provided by the Vision 11 possess the element of skill
which has a much greater and predominant influence78 on the outcome of the fantasy cricket
game than any incidental chance and hence doesn’t amount to gambling79 or betting under the
ambit of Public Gambling Act, 1867. The Vision 11 fantasy cricket game is neither ‘malum in
se’ nor ‘malum prohibitum’.
[II.C] The points are attributed in a transparent and verifiable manner.
[¶.29] It is humbly submitted that in Vision 11 fantasy cricket game, the points are attributed
in a transparent and verifiable manner to the virtual analogues of real world cricketers on the
basis of, amongst others, the real-worlds player's selection in the starting eleven of the real-
67
Dr. K.R. Lakshmanan v. State of Tamil Nadu, (1996) 2 SCC 226), ¶s 20 & 21; People v. Monroe, 85 A.L.R.
605; Edward J. Rohan v. Detroit Racing Assn., 166 ALR 1246 SW 2d 987; Commonwealth v. Kentucky Jockey
Club, 38 SW 2d 987; Smith et al. v. Commonwealth of Kentucky, 275 U.S. 509; Utah State Fair Assn. v. Green,
(1926) 68 Utah 251; Panas v. Texas Breeders & Racing Assn. Inc., Tex Civ App 80 SW 2d 1020; State v.
Thompson, 60 SW 1077; Engle v. State of Arizona, (1939) 53 Ariz 458; Stoddart v. Sagar, 64 LJ MC 234;
Caminada v. Hulton, (1891) 60 LJ MC 116; Section 30 of Indian Contract Act, 1872; Encyclopedia Britannica,
15th Edition, Volume 5 at pg. 105.
68
State of Andhra Pradesh v. K. Satyanarayana, AIR 1968 SC 825; Director General of Police, Chennai & Ors.
v. S. Dilibabu, 2018 CriLJ 1842; The Director General of Police State of Tamil Nadu Chennai and Ors. v.
Mahalakshmi Cultural Association, MANU/TN/0741/2012.
69
Kizhakke Naduvath Suresh v. State of West Bengal, W. P. No. 13728 (W) of 2015.
70
Tote Investors Ltd. v. Smoker, (1967) 3 All ER 242: (1967) 3 WLR 1239: (1968) 1 QB 509.
71
Nat'l Football League v. Governor of Del., 435 F. Supp. 1372, 1384 (D. Del. 1977); Elderton v. Totalisator Co.
Ltd., (1945) 2 AER 624; The Sikkim Online Gaming (Regulation) Act, 2008.
72
Attorney General v. Luncheon and Sports Club Ltd., 1929 AC 400: 1929 All ER Rep Ext 780; Grant v. State,
44 S.E.2d 513, 515 (Ga. Ct. App. 1947).
73
Lewis v. State, 189 S.E. 566, 566 (Ga. Ct. App. 1937).
74
Tulsi Ram vs. State of Rajasthan, (24.01.2002 - RAJHC): MANU/RH/1404/2002, ¶ 16.
75
Fanduel, Inc. v. Madigan, No. 15 MR 1136 (Ill. Cir. Ct. Mar. 16, 2016).
76
Varun Gumber v. Union Territory of Chandigarh, 2017 Cri.L.J. 3827, ¶ 19.
77
Moore v. Elphick, (1945) 2 All ER 155 (CA).
78
People v. Schapiro, 77 N.Y.S.2d 726, 728
79
Bimalendu De v. Union of India, AIR 2001 Cal 30; Black's Law Dictionary, 6th edn.at 679.

P a g e | 12
WITH MEMO PUNDITS
world team, number of runs scored, wickets taken, catches taken, stumpings/run-outs caused,
batting strike rate and bowling economy rate with additional bonus points for boundaries hit,
maiden overs bowled and similar other laudable performance events.80
[II.D] The users are charged with a fixed administrative fee for participation in each
round.
[¶.30] It is humbly contended that the Vision 11 limits its fees and charges for such
participation to an administrative fee. This entire amount of the administrative fee is collected
and held by Vision 11 in trust of the game and is, upon announcement of the results of the
fantasy cricket game, distributed in a transparent and objective manner on the basis of the final
points-tally of participating users in the fantasy game.81 The payment of entry fees does not
constitute illegal wagering under law when the entry fees are paid unconditionally and the
prizes do not depend on the number of participants.82 The fantasy sports are games of skill83,
depending on the fantasy participant’s skill in selecting players for his or her team 84, adding
and dropping players during the course of the season and deciding who among his or her players
will start and which players will be placed on the bench.85
[II.E] The element of equal chance of gain or loss is absent.
[¶.31] It is respectfully submitted that as is the case with any game of skill86, greater experience
and training in Vision 11 fantasy cricket game provides a user with greater insight into
strategies for success and a better understanding of the game's dynamics and operational
constraints, and in itself heightens and attunes the element and exhibition of skill on the user's
part and thereby has an material influence on generating a successful winning outcome in
favour of the user. The report87 argues that it is highly unlikely that the difference in average
win rates between top performers and average performers can be explained solely by chance.
The ability to consistently find players who over-perform when compared to their salary value
is a critical element denoting the skill involved in fantasy sports games.
80
Moot Compromis, Pg. 1, ¶ 2 (b); Varun Gumber v. Union Territory of Chandigarh, 2017 Cri.L.J. 3827, ¶ 19.
81
Moot Compromis, Pg. 2, ¶ 2 (c).
82
State v. Am. Holiday Ass'n., 727 P.2d 807, 812 (Ariz. 1986); Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85,
87 (Nev. 1961); Humphrey v. Viacom, Inc., 2007 BL 38423 (D.N.J. June 20, 2007).
83
Saligram v. Emperor, AIR 1933 Calcutta-8.
84
Seattle Times Co. v. Tielsch, 495 P.2d 1366, 1367 (Wash. 1972).
85
Standerly R. Lyngkhoi v. State of Meghalaya, (07.09.2011 - GUHC): MANU/GH/0714/2011.
86
Ruben v. Keuper, 127 A.2d 906, 907 (N.J. Super. Ct. Ch. Div. 1957); New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932).
87
FanDuel v. Schneiderman, N.Y. Sup. Ct., 161691/2015 available at: http://www.legalsportsreport.com/wp-
content/uploads/2015/11/DK-Oppn-to-PI.pdf.

P a g e | 13
WITH MEMO PUNDITS
[¶.32] The wagering/ gambling/ betting is based on chance.88 And therefore it is necessary that
both parties should get an equal chance of winning and mutual opportunity must be given to
both the parties to gain or lose to the result of an uncertain event89. However, if winning or
losing is completely based on skill and the result is in the hands of one party then there is no
wagering/ gambling/ betting90 and the argument of immorality91 of the activity does not
survive.92 Hence, the element of equal chance of gain or loss is absent in this instant fantasy
cricket game.
[II.F] The Vision 11 is a legitimate business activity protected under Article 19 (1) (g)
and Article 301 of the Constitution of Intia.
[¶.33] It is respectfully asserted that the Vision 11 fantasy cricket game is a legitimate business
activity protected under Article 19 (1) (g) (fundamental right to practice any profession or to
carry on any occupation, trade or business) and Article 301 (freedom of trade, commerce and
intercourse throughout the territory of India) of the Constitution of Intia and cannot be excluded
by using the doctrine of res extra commercium. The Supreme Court has also authoritatively
held that conducting of skill games93 does not amount to “gambling”94 but a commercial
activity and therefore entitled to constitutional protection.95
88
Rahke v. United States, 180 F. Supp. 576, 578 (Ct. Claims 1960).
89
Babasaheb Rahimsaheb v. Rajaram Raghunath Alpe, (1931) 33 BOMLR 260; Bassoon v. Tohersey, (1903) I.
L. R. 28 Bom. 616; Shoolbred v. Roberts, [1899] 2 Q. B. 569.
90
Dayabhai Tribhovandas v. Lakhmichand Panachand, (1885) ILR 9 Bom 358.
91
Gherulal Parakh v. Mahadeodas Maiya & Ors., AIR 1959 SC 781.
92
S. Khushboo v. Kanniammal, AIR 2010 SC 3196.
93
M/s. B.R. Enterprises v. State of U.P. & Ors., AIR 1999 SC 1867.
94
Dr. K.R. Lakshmanan v. State of Tamil Nadu, AIR 1996 SC 1153, ¶ 22.
95
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, ¶ 35; R.M.D. Chamarbaugwala v. Union of
India, AIR 1957 SC 628: 1957 SCR 930, ¶ 5.

P a g e | 14
WITH MEMO PUNDITS
PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before this Honourable Court that it may be pleased to
adjudge and declare:
1. That the APL’s use of the player illustration in conjunction with the player codes does not
amount to the infringement of Plaintiff’s personality rights and the plaintiffs are not entitled
to the remedy of passing off;
2. That in view of the circumstances mentioned hereinabove, a decree for permanent

injunction in favour of the plaintiff and against the defendant should not be passed;
3. That the Vision 11 fantasy cricket game does not amount to gambling under the Public
Gambling Act, 1867;
4. That the present Public Interest Litigation is a gross abuse of the process of the Court and
should be dismissed.
And/Or,
To grant any other order in favour of the defendant and respondents which the Hon’ble
Court may deem fit in the eyes of Justice, Equity and Good Conscience.
All of which is respectfully submitted and for such act of kindness the defendant and
respondents shall be duty bound as ever pray.
Place: New Telly S/d_____________

Date: 25/07/2020 COUNSELS ON BEHALF OF THE DEFENDANT &
RESPONDENTS

P a g e | 15

1 M D C B M I P W M P: Emorial Rafting Ompetition Y Etacept N Artnership ITH EMO Undits

Uploaded by

Copyright:

Available Formats

1 M D C B M I P W M P: Emorial Rafting Ompetition Y Etacept N Artnership ITH EMO Undits

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

1 M D C B M I P W M P: Emorial Rafting Ompetition Y Etacept N Artnership ITH EMO Undits

Uploaded by

Copyright:

Available Formats

1ST MEMORIAL DRAFTING COMPETITION BY METACEPT IN PARTNERSHIP

WITH MEMO PUNDITS TEAM CODE: MD-70

1ST MEMORIAL DRAFTING COMPETITION BY METACEPT

IN THE HON’BLE HIGH COURT OF NEW TELLY

ORIGINAL CIVIL JURISDICTION

M.S. DHENIER & VIRAT KELLY……………………………………...…...PLAINTIFFS

AVENGERS MEDIA and ENTERTAINMENT Pvt. Ltd. …………………DEFENDANT

ORIGINAL WRIT JURISDICTION

M.S. DHENIER & VIRAT KELLY…………………………………...…PETITIONERS

UNION OF INTIA & OTHERS.….……………………………………...RESPONDENTS

UPON HUMBLE SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE OF

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

ISSUE I: WHETHER APL’S USE OF THE PLAYER ILLUSTRATIONS IN

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

1. Andhra Pradesh v. K. Satyanarayana AIR 1968 SC 825 ¶ 12 10

2. Andhra Pradesh v. K. Satyanarayana (1968) 2 SCR 387: AIR 11

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

34. Engle v. State of Arizona (1939) 53 Ariz 458 12

35. Erven Warnink v. Townend (1979) AC 731 6

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

60. Panas v. Texas Breeders & Racing Tex Civ App 80 SW 2d 12

63. People v. Schapiro 77 N.Y.S.2d 726 728

64. People v. Turner 629 N.Y.S.2d 661, 662 11

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

70. Qualitex Co. v. Jacobson Products 514 U.S. 159 (1995) 5

76. Reckitt & Colman Products Ltd v. HL 1990 5

78. Ruben v. Keuper 127 A.2d 906, 907 (N.J. 13

81. Saligram v. Emperor AIR 1933 Calcutta-8 13

82. Seattle Times Co. v. Tielsch 495 P.2d 1366, 1367 13

84. Sim v Heinz & Co Ltd (1959) 1 WLR 313 1959 7

85. Smith et al. v. Commonwealth of 275 U.S. 509 12

87. Standerly R. Lyngkhoi v. State of MANU/GH/0714/2011 13

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

92. State v. Thompson 60 SW 1077 12

93. Stoddart v. Sagar 64 LJ MC 234 12

98. Trafix Devices v. Mktg Displays 532 U.S. 159 (1995) 5

99. Tulsi Ram vs. State of Rajasthan MANU/RH/1404/2002 12

100. Utah State Fair Assn. v. Green (1926) 68 Utah 251 12

101. Varun Gumber v. Union Territory of 2017 Cri.L.J. 3827 9, 10

104. Hem Corporation v. ITC Limited 2012 (52) PTC 600 20

II. LIST OF STATUTES

1. The Constitution of India, 1950 Passim

2. The Trade Marks Act, 1999 Passim

3. The Copyrights Act, 1957 Passim4

4. The Code of Civil Procedure, 1908 Passim

5. The Delhi High Court Act, 1966 Passim

6. The United States Constitution, 1789 Passim

7. The Public Gambling Act, 1867 Passim

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

III. LIST OF BOOKS CITED

1. WILLIAM CORNISH, Cases and Materials on Intellectual Passim

IV. LIST OF ONLINE DATABASES

3. SCC Online (www.scconline.in)

5. The Judgement Information System (http://www.judis.nic.in) (Supreme Court of

MEMORANDUM SUBMITTED ON BEHALF OF THE DEFENDANT & RESPONDENTS

M.S. DHENIER & VIRAT KELLY