METACEPT IN PARTNERSHIP WITH MEMO PUNDITS

PRESENTS

1ST MEMORIAL DRAFTING COMPETITION

PROBLEM
[¶1] Sports, has been an intrinsic part of the society in the country of Intia. The spirit and
challenge of competition have time and again acted as motivations for people to participate in
these events. With the advent of Internet, sports have also evolved and have made its presence
felt in the ‘virtual’ space as well. In the contemporary world, fantasy sports games have acquired
immense popularity and have provided the general population the opportunity to make
themselves a ‘part of the action’.

[¶2] Anticipating a suspected growth in the domain of ‘fantasy leagues’, Mr. Tony Stark , CEO
of Avengers Media and Entertainment Pvt. Ltd. (hereinafter “APL”), a company incorporated
under the Companies Act, 2013 with its registered office at 5th Floor, Commercial House,
Connaught Place, New Telly decided to enter into this field. APL, developed a game called
Vision 11 which is an online multi-player fantasy cricket game (available in the form of a mobile
application under the same name) in which users select, build and act as managers of their own
virtual cricket teams. The results of the rounds are based on statistics, scores, achievements and
the performance of real life cricketers. The winner of a Vision 11 round is the user whose virtual
team accumulates the greatest number of points across the rounds of the game. The game
includes the following essential processes:

a. Drafting: This is the process of selection of team players. Users are expected to consider
the current form of the cricketer, his relative worth as well as his strengths and
weaknesses. Users are given access to 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. Selection of Captain and Vice-captain is crucial as
double of the points accumulated by the Captain and 1.5 times of the points accumulated
by the Vice-Captain are added to the overall points of the team.

b. Attribution of points: Points are attributed to each player inter alia on the basis of the
real cricketer’s selection, 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 similar laudable
performance events.

1
 c. Payment of Fee and distribution of prize money: Each user is charged with a fixed
administrative fee for participation in each round. The entire administrative fee is
collected and held by Vision 11 in trust of the game and is, upon announcement of the
results, distributed in a transparent and objective manner on the basis of the final points-
tally of the users in the game.

[¶3] APL wanted to use pictures/figures/names of real-life cricketers, and logos of the
tournaments/leagues and teams for Vision 11’s script, to make the game, as true to life as
possible. It approached the Board of Control for Cricket in Intia (BCCI), cricket boards of other
jurisdictions and the relevant league teams and requested for license to use their respective logos.
It also approached several Intian and foreign cricketers seeking permission to use their names,
pictures and videos. However, APL was refused license or permission of any kind. It therefore
resorted to creating its own team names and logos for 10 international teams and the Intia Pro
League (“IPL”). Instead of pictures or videos of real-life cricketers, APL used illustrations of the
cricketers which were created by skilled digital sketch artists who are APL’s employees. APL
therefore claimed copyright over the illustrations. Instead of using actual names of real-life
cricketers, it used a player code for each cricketer which is a combination of the initials of the
real-life cricketer and their jersey numbers. For instance, player code for MS Dhenier’s
illustration was MS7 and for Virat Kelly’s illustration was VK18. APL also made sure that no
official team names, team logos or brand logos (like Nikey or Coppo etc.) were used.

[¶4] The game was finally launched and in a span of three months itself, it had over one lakh
registered users which majorly comprised of the youth. APL decided to boost its social and print
media promotion by designing posters bearing the illustrations of two of its most popular Vision
11 players- MS7 and VK18 and a one-liner catch phrase- “Come and Play with MS7 & VK18 on
our app.” The same were used for promotions on popular social media platforms such as
Pacebook , Intagram and Switter, several national and regional newspapers, hoardings in several
cities etc.

[¶5] These posters caught BCCI’s attention and it immediately sent a legal notice to APL, raising
concerns about the unauthorised use of the real-life cricketer’s illustrations in conjunction with
their initials and jersey numbers on an online game which is essentially gambling. BCCI directed
APL to cease and desist from operating Vision 11, framing them for illegal operation of their
company, which was against public policy and tarnishing the image of the Intian Cricket
fraternity. APL replied to the legal notice stating that they held copyright over the players’
illustrations and that the format of the game was entirely legal as it required the participants to
have specific skill set for analysis of players’ performance statistics, knowledge of their current
form etc. In addition to this, it stated that none of the official logos, cricketers’ real names, or
their pictures were being used by them. Further, the use is at worst nominative in nature and is
not intended to cause any confusion regarding commercial association of the real-life cricketers
with APL in the minds of the users.
2
[¶6] The legal department team of M S Dhenier and Viret Kelly were also intimated about the
use of their illustrations in conjunction with the player codes by BCCI. Both the cricketers
proceeded to institute a case at the appropriate court in Intia with respect to the infringement of
their personality rights and passing off. In addition to the injunctive relief, they sought Rs. 2
Crores in the form of damages from APL. They pleaded that APL’s adoption of the illustrations
and player codes is mala-fide as it is intended to ride upon the real life cricketer’s good will and
reputation and it was giving off an impression that the players are associated with an illegal game
which is in derogation of their public image as well as the spirit of Intian cricket. They
simultaneously filed a Public Interest Litigation challenging the legality of Vision 11 on the
ground that it was their skill-set which gave points to the users of the game and hence ‘no skills’
on the part of users was really required. Therefore, the game was merely a game of chance and
amounted to gambling under the Public Gambling Act, 1867. Since, both the cases dealt with
connected issues, the court clubbed the cases and listed them for a joint hearing.

The Hon’ble Court framed the following issues and directed that unless compelling reasons are
shown no further issues shall be taken up for hearing 1-

1) Whether APL’s use of the player illustrations in conjunction with the player codes
amounts to infringement of M.S Dhenier and Viret Kelly’s personality rights and passing
off?
2) Whether, Vision 11 amounts to gambling under the Public Gambling Act, 1867?

NOTES:

1) All names, characters, places and incidents above are entirely fictional with resemblance
to any real-life equivalent being coincidental at best, mistaken at worst.
2) Intia is a fictitious country with a Constitution and laws in pari materia with that of India.
New Telly is a fictitious territory with laws in pari materia with the National Capital
Territory of Delhi, India.
3) The Rules and Regulations / Code of Conduct of Board of Control for Cricket in Intia is
pari materia to the Board of Control for Cricket In India.
4) New Party / Parties cannot be added upon any request to the proceeding.
5) No attempts should be made to contact the framer of this moot problem. It will result in
immediate disqualification from the competition.
*************************** ALL THE BEST ****************************

1This Compromis has been drafted by Mr. Nikhil Naren, Trainee Advocate, Scriboard [Advocates and Legal
Consultants], New Delhi and Publishing Editor, Metacept | InfoTech and IP Laws and has been proofread by Ms.
Eva Bishwal, Senior Associate, Fidus Law Chambers.