The Delhi High Court on Wednesday denied a request for an interim injunction made by Rario, a cricket-centric NFT marketplace backed by Dream 11. Rario had filed the plea in February of the same year in an attempt to prevent rivals Mobile Premier League (MPL) and Striker from using caricatures and identifiers licensed by some sportspersons under exclusive deals to offer them as NFTs on their platforms. Rario had also claimed that these deals entitled only their platform to create NFTs about the players. However, the court denied the request, stating that Rario cannot claim an exclusive right over the use of NFT technology that is freely available.
Non-fungible tokens (NFTs) are unique digital identifiers that cannot be replaced and are recorded on a blockchain. They are used to certify ownership and authenticity, particularly in the gaming industry, where NFTs represent in-game items such as weapons or virtual environments and generate revenue for game developers.
The Delhi High Court stated that the right of publicity cannot be infringed merely on the basis of a celebrity being identified or the defendants making commercial gains. It said that the extent of the right of publicity also has to be considered in the context of the ‘right to freedom of speech and expression’ protected under Article 19(1)(a) of the Constitution. Even if the right of publicity were to be considered an absolute right in India, it still must be subservient to Article 19(1)(a).
The court also stated that the use of celebrity names and images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news, and other similar uses would be permissible under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity. The judge also said that the use of the name and/or the image of a celebrity along with data regarding their on-field performances by OFS platforms is protected by the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.
The high court said that NFT player cards are in fact ‘in-game’ assets used to enhance the experience of playing the game. It also said that there is no difference between online fantasy sports (OFS) with NFT-enabled player cards and an ordinary OFS game insofar as the use of the name or artistic impression/photograph of a player is concerned.
The court noted that the defendants (MPL and Striker) had already been running their game for almost six months, and the grant of an ex-parte injunction order would gravely prejudice their business. The plaintiff’s application seeking exemption from advance service was not considered bona fide. The court believed that an injunction granted at this stage would result in the closure of the business of Striker and cause huge financial losses to Striker and its users. In the event that the plaintiff succeeds in the suit, compensation can be provided. Therefore, the plaintiffs failed to make out a case for a grant of interim injunction.
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