Bombay High Court Upholds Single Judge Order Permitting 'Phone Pe' To File Fresh Trademark Suit Claiming Exclusivity On 'Pe' Suffix

The Bombay High Court has allowed PhonePe to file a fresh suit claiming trademark infringement against Resilient Innovations, the owners of PostPe.Earlier a single judge of the High Court had granted leave to PhonePe to withdraw its suit and file a fresh one, which was challenged before a division bench, which has refused to interfere with the single judge's order.A division bench of Justices SJ Kathawalla and Milind Jadhav, on Friday, dismissed as not maintainable an appeal by Resilient Innovations, which owns the rival brand PostPe. The court, however, refrained from making observations on the merits of the case.Resilient challenged the single judge's order stating that PhonePe could not have been allowed to cure a 'defect of substance' or to overcome the possibility of failure to prove the case pleaded originally.While Senior Advocate Janak Dwarkadas, appearing for PhonePe, opposed the appeal arguing that it was not maintainable as the single judge's order was not a judgement or a decree which was appealable, Senior Advocate Darius Khambata, for Resilient, argued that it was a decree, as it conclusively decided the controversy between the parties even if it may not have been on the merits of the case.According to Khambata, Resilient should have been given a chance by the single judge to respond to PhonePe's prayer seeking liberty to file a fresh Suit, therefore the appeal. Dwarkadas submitted that the appeal did not take away any rights of Resilient and PhonePe was entitled to statutory protection being the registered proprietor of the trademark.The dispute started with PhonePe approaching the court in October last year claiming that Resilient, through its mobile application PostPe, was engaged in an identical field of digital payment services to customers and that amounted to infringement and passing off of PhonePe's trademark.A single judge refusing interim relief to PhonePe, observed that there was no registration of the word mark 'PE' per se in PhonePe's favour and that it had a label or device mark with the word 'PE' in Devanagri script. PhonePe, then, sought liberty to withdraw the Suit while Justice Riyaz Chagla was dictating the order, and sought liberty to file a fresh Suit on PhonePe mark as a whole.While granting the liberty, the court also allowed Resilient to rely on its observations made while defending the new suit by PhonePe.Citation: 2022 LiveLaw (Bom) 79

Bombay High Court Upholds Single Judge Order Permitting 'Phone Pe' To File Fresh Trademark Suit Claiming Exclusivity On 'Pe' Suffix

Sharmeen Hakim

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