Foodlink F and B Holdings India Private Limited vs. WOW Momo Foods Private Limited
In this Trademark Infringement case, Foodlink F and B Holdings India Private Limited (Plaintiff) filed for injunction before the Delhi High Court against the WOW Momo Foods Private Limited (Defendant). This case portrays a clear factual scenario, wherein the Plaintiff registered their mark with effect from 15th December 2003. Furthermore, it is also well established that both the marks are used for providing similar services under the “BISTRO” tag, and both the Plaintiff and the Defendant run upmarket restaurants offering Chinese – or Indo Chinese – cuisine.
The Hon’ble High Court thus recognized the following issues that arises out of this case: firstly, whether the plaintiff’s and defendant’s marks are confusingly or deceptively similar so as to result in infringement within the meaning of Section 29(2) of the Trade Marks Act, 1999; secondly, whether the plaintiff is entitled to such claim.
The Hon’ble High Court’s examination encompassed two core issues emerging from this case. Firstly, the Court maintained that prima facie, there can be no doubt that the words CHINA BISTRO, in the case of the Plaintiff’s mark, and the words WOW! CHINA BISTRO, in the case of the Defendant’s mark, constitute their essential feature. A customer of average intelligence and imperfect recollection comes, may ponder whether both establishments are managed by the same entity or share some affiliation. This prima facie indicates infringement under Section 29(2) of the Trade Marks Act regarding the aspect of confusing or deceptive similarity.
The Hon’ble Court also addressed the second issue, pertained to the plaintiff’s right to allege infringement. The question arose due to the plaintiff’s claim to exclusive rights over both “CHINA” and “BISTRO” in the mark CHINA BISTRO. Additionally, since neither the word “CHINA” nor the word “BISTRO” is individually registrable as a mark, as “CHINA” is the name of a country and “BISTRO” is publici juris (a thing or a right that is open and exercisable by all persons), a commonly used expression regarding the restaurants, cafes and the like.
The Hon’ble Court thus concluded that in view of Section 17 of Trade Marks Act, it is not permissible for the court to dissect the individual rival marks while examining the infringement. It is a well-settled principle that the court has to compare the marks as wholes. The Court further added that the plaintiff can allege infringement of the mark on the ground that it is deceptively similar to the composite mark CHINA BISTRO when seen as a whole. 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. Consequently, the Defendant was prohibited from using the mark “WOW CHINA BISTRO” in any manner, identical or deceptively similar to the Plaintiff’s mark “CHINA BISTRO” till further orders are to be passed in the suit. However, the Defendant is permitted to use “WOW! CHINA” without constraints.

Author of this article:
Adv. Ravish Bhatt,
Partner, R&D Law Chambers,
Dual Qualified Lawyer Solicitor | International Tax Affiliate

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