8 Aug 2023 7:23 AM GMT
The Delhi High Court has temporarily restrained fast food chain WOW! Momo from using the mark “WOW China Bistro” in a trademark infringement suit filed by an entity that has been operating various restaurants under its registered mark “China Bistro.”Justice C Hari Shankar however clarified that WOW! Momo would be entitled to use the mark “WOW! CHINA” or “WOW! CHINA LIVE...
The Delhi High Court has temporarily restrained fast food chain WOW! Momo from using the mark “WOW China Bistro” in a trademark infringement suit filed by an entity that has been operating various restaurants under its registered mark “China Bistro.”
Justice C Hari Shankar however clarified that WOW! Momo would be entitled to use the mark “WOW! CHINA” or “WOW! CHINA LIVE CHINESE” logo.
The court observed that when compared as wholes, the two individual marks in question are deceptively similar as their textual components, which constitute their essential and distinctive features, are deceptively similar to each other.
“In fact, they are identical, the only difference between the two marks being that, in the defendant’s mark there is an added prefix “WOW!”,” the court added.
Justice Shankar was dealing with a suit filed by Foodlink F and B Holdings India Private Limited alleging infringement of its trademark “China Bistro”, registered in January 2012, by Wow Momo Foods Private Limited.
The suit contended that though Wow Momo was using the mark WOW! CHINA till December 2019, it started using the same by adding the word “BISTRO” with the mark thereafter. It was China Bistro’s case that with the addition of “BISTRO” below “CHINA” in the mark , Wow Momo’s mark became deceptively similar to its mark as both marks now read CHINA BISTRO, with “WOW!” above “CHINA”.
It was submitted that addition of the word “WOW!” would not in any way mitigate the possibility of confusion or deception between the two marks from the point of a customer of average intelligence and imperfect recollection.
The court observed that the mere insertion of disclaimers with respect to the words “CHINA” and “BISTRO” in the registrations granted to Foodlink F and B Holdings for its composite marks CHINA BISTRO would not disentitle it from claiming exclusivity for the composite mark.
“Simply put, disclaiming exclusivity in respect of the individual parts of a mark would not ipso facto result in disclaiming exclusivity over the composite mark as a whole. Two ordinary words, though completely lacking in distinctiveness when seen individually may, when combined together, be distinctive. This is, in my considered opinion, prima facie one such case,” it added.
Furthermore, Justice Shankar said that even if the individual parts of a composite mark are by themselves not distinctive, the composite mark which combines the individual non-distinctive parts together may partake of distinctiveness.
“The composite mark CHINA BISTRO, however, in my view, cannot be said to be lacking in distinctiveness, when seen as a whole, in the absence of any evidence or material to that effect led by the defendant,” the court observed.
Title: FOODLINK F AND B HOLDINGS INDIA PRIVATE LIMITED v. WOW MOMO FOODS PRIVATE LIMITED
Citation: 2023 LiveLaw (Del) 659
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