On 21 August, the INDRP order as to Domain Name StarPoker.in has been pronounced by Arbitrator Dr S.R. Ravindran, wherein Complaint has been rightly denied for the following reasons:
- Complainant owned Trademark over the term “PokerStars” worldwide including India since 2012 under various classes – 9,18,25, 28, 36, 41, 42, most of which now have Registered status. Though, Respondent did not file any response, but as per the research carried on at the Arbitrator’s end, the Respondent which had a legitimate website and has been incorporated as KD Gaming Solutions Pvt. Ltd, was applicant for a Trademark application no 3001142 dated 03 July 2015, STARPOKER as a device mark.
- Respondent in the response to the examination report in relation to objections raised for Complainant’s Trademark “PokerStars” have stated to the Trademark Registry that “We further submit that no one can monopolize generic / descriptive work like poker. The said word is devoid of distinctiveness.“
- Therefore, Arbitrator held that accordingly, the Complainant is seized of this Registration. And finds that the Complainant is unable to satisfy the first element of the INDRP Policy requirements.
- Further, the Complainant failed to demonstrate that the Respondent has or ever had the malicious intent to trade off the Complainant’s trademark rights.
- Moreover, the Respondent was having legitimate website with a purpose relating to the generic and descriptive meaning of “Poker” and therefore be considered as bonafide under the Policy.
- Lastly, the clause as to Bad Faith too, could not be satisfied by the Complainant, therefore, the complaint was denied and domain <starpoker.in> ordered to remain with the Respondent.
IS POKER LEGAL ?
But the question arises is that whether an Indian Company be allowed run a game of Poker online. The answer to the same lies in the fact that the Indian Courts in various judgments have taken the view that games which involve substantial skill are out of purview of Gambling as against the Games of Chance covered under the definition of Gambling. Many websites dealing in Poker like Adda52 have special section on legality of Poker here. Which makes reference to Supreme Court judgment as old as 50 years but the times have definitely changed in this digital age !
Therefore, the owners at ADDA52 – Gaussian Network Pvt. Ltd initially had filed for a petition before a Delhi District Court (read here), which took the view that older judgment related to offline gambling and not online, where chance always predominates skill. And court also said in relation to online environment that –
“There is little mechanism to check the transfer of money through the international routes. Information stored in clouds leads to jurisdictional issues. Lack of regulation results in total evasion of taxes, though vide the due diligence rules in Information Technology made in 2011, an attempt to transfer money involving online gambling is prohibited and excess to such content may be blocked. Payment gateways of gambling sites are also blocked by the Reserve Bank of India.”
Further, the court defined Game of Skill as follows:
A game of skill is one where the outcome is determined mainly by the mental or physical prowess, rather than by Chance. Though there is hardly a game which does not involve a certain degree of chance which may be due to natural aspects of environment, bluffing or other psychological warfare, in games involving Skill there should be a predominance of Skill over Chance.
The Court further held – Chess, Golf, Bridge, Rummy, Billiards as games of Skil but said though the petitioner has placed reliance on a lot of material to substantiate that Poker is a game of skill, the same is highly questionable and falls within grey area. As a result of decision in 2012, the Gaussian Network Pvt. Ltd went into appeal to Delhi High Court, but it has been withdrawn in 2016 and even the trial court decision has been nulled and does not hold good as on date. (Read here)
Whereas ADDA52.com, is hoping to survive based upon old judgments and so too seems to be aim of StarPoker.in. Though, if Poker would have been held as a Game of Chance to fall within the purview of the term Gambling, this could have resulted in cancellation of the Domain Name, as already held in the INDRP matter of Sbobet.in (Celton Manx Limited, UK Versus Rayit Carrera, Indonesia) decided on 08 January 2015 by NIXI Arbitrator Mr Amarjit Singh.
INDRP – Sbobet.in (Case No INDRP/623)
The complainant in the matter of Sbobet.in was Celton Manx Limited incorporated in Isle of Man, wherein SBOBET stood for Sports Bookie Online Bet Inc. an online bookmaker company founded in 2004 and held a valid Trademark over the term SBOBET in European Region and further made claims that Respondent was not making any legitimate use of the Domain Name, or for any bona fide purposes, parking page provided links back to Complainant .com website, etc. The Respondent did not file any response. And Complaint almost prevailed
But very rightly it was held that online Betting or Gambling for which the Domain Name has been sought to be registered is an unlawful activity in India, which is against the Domain Registrant agreement and also .IN Domain dispute Resolution Policy, wherein a Domain cannot be used for unlawful purpose. The Arbitration under the Arbitration and Conciliation Act, 1996 cannot be undertaken for the proposed unlawful activity which is against law of the country. Therefore, it was concluded that no only the purpose of registration was unlawful but also the primary purpose of transferring the Domain Name by the Complainant for which this Complaint has been filed, is also unlawful and against the Policy.
Decision in Sbobet.in:
“In view of the above facts,the panel finds that the impugned domain name has been registered with the primary purpose of operating unlawful activities of Online betting which activity is prohibited under the Public Gambling Act, 1867, the impugned domain name www.sbobet.in is thus directed to be cancelled.”