Afzal v. Afsal: Delhi High Court Says Consumers Chewing Tobacco Generally Laymen, Can't Discern Difference Between Confusing Marks

The Delhi High Court has decreed renowned tobacco exporter-Sopariwala’s trademark suit, holding that the defendant had a clear intent to adopt a mark deceptively similar to Sopariwala’s and to pass off its own products as the latter’s.

The plaintiffs are registered proprietor/licensees of trademark “AFZAL” (word and device), under which tobacco is exported and sold in India. They also hold a copyright in their trade dress and have been recognised as a ‘Star Export House’ by GoI.

The plaintiffs’ case before the Delhi High Court was that plaintiff No.1 had been using trademark “AFZAL” for tobacco products since 1977 and it has now become a source identifier. In support of their claim of popularity, the plaintiffs informed the Court that their earnings from products bearing “AFZAL” formative trademarks amounted to INR 164.34 crores in 2019-20.

It was alleged that the defendant was manufacturing and selling tobacco, as well as related products, under mark “AFSAL”. He had adopted a trade dress deceptively similar to plaintiffs’ and was thus guilty of trademark infringement, copyright infringement and passing off.

None appeared for the defendant despite service and he was proceeded ex-parte on November 4, 2022.

After perusing the record, Justice C. Hari Shankar observed that considering the visual and phonetic similarities between the parties’ marks from the perspective of a consumer of chewing tobacco, the likelihood of confusion could be legitimately presumed.

The Court further observed that consumption of tobacco could adversely affect consumers’ health, and therefore, additional vigilance was required to be exercised.

“Chewing tobacco, is a product, panders less to the cognoscenti and more to the laity. Consumers of chewing tobacco cannot be treated as so discerning as to note the difference between the mark of the plaintiffs and the mark of the defendant, as to be able to distinguish one from the other”, the Court said.

It was added that, “…an imitator, being one who chooses to ride, not on his own, but on another’s, reputation, may also legitimately be presumed not to be particularly circumspect with respect to quality of his product.”

Noting that the defendant had neither entered appearance, nor filed a written statement, the Court opined that the allegations in the plaint had to treated as admitted on the “principle of non-traverse” and the suit decreed under Order 8 Rule 10 CPC.

Accordingly, a permanent injunction in plaintiffs’ favour was granted and the defendant restrained from using plaintiffs’ marks and trade dress (or any mark/trade dress deceptively similar thereto).

Ms. Jaya Negi and Mr. Yudhajeet Sinha, Advocates appeared for Plaintiffs

Case Title: Sopariwala Exports & Ors. v. Ashraf V

Citation: 2023 LiveLaw (Del) 1003

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