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The appellants have filed this impugning appeal on order dated 06.01.2022 passed by the learned Single Judge, where the appellants’ application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (I.A. 12032/2020 in CS (COMM) 551/2020 (Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Limited), seeking an interim injunction against the respondent from infringing the appellants’ registered trademarks, was rejected. Appeal before the Hon’ble division bench of Delhi High Court (FAO (OS) (COMM) 67/2022 and CM No. 13491/2022). The bench constitutes HON’BLE MR JUSTICE VIBHU BAKHRU and HON’BLE MR JUSTICE AMIT MAHAJAN.

FACTS OF THE CASE:

The appellants claim that the trademark ‘SHARBAT ROOH AFZA’ has been used for business since 1907 in respect of a sweet beverage concentrate, manufactured and sold by the appellants. The respondent recently launched a similar product under the name ‘SHARBAT DIL AFZA’.

The appellants claim to be aware of the respondent’s product on 27.04.2020, from an advertisement in a daily newspaper that the respondent is launching its sharbat with the name ‘DIL AFZA’. As stated earlier, the appellants claim that the trademark ‘DIL AFZA’ is deceptively similar to their trademark ‘ROOH AFZA’. The packaging of the product was also very similar to the appellant’s product.

The appellants issued a Cease and Desist Notice to the respondent on 16.03.2020 to prevent the respondent from infringing the appellants’ registered mark. The respondent responded by a letter on 14.07.2020, denying the claims of the appellants. This led to the appellants filing the suit.

The appellants initially filed the suit, CS(COMM) 551/2020, inter alia, seeking a permanent injunction restraining the respondent from using the trademark ‘SHARBAT DIL AFZA’, which, the appellants claim, is very similar to their own registered trademark ‘ROOH AFZA’. This was rejected by the learned single judge.

The appellants claim that use of the impugned trademark ‘SHARBAT DIL AFZA’/ ‘DIL AFZA’ will not only lead to lot of confusion in the mindset of the consumers but also an infringement of their own trademark. 

The appellants claim that it was entirely intentional to make the products similar. Thus intending to deceive customers and must be constituted as unfair competition. The impugned trademark of the respondent i.e. ‘SHARBAT DIL AFZA’ is registered in favor of the respondent in Class 5 and Class 32 with registration number 3878751 and 3855931 respectively.

JUDGEMENT:

The division bench identifies that the appellant’s product has acquired immense goodwill for over a century. The Court is the view that the said mark requires a high degree of protection and it is essential to ensure that the competitors keep a safe distance from the said mark.

The Court is of the view that the impugned trademark (SHARBAT DIL AFZA) lacks sufficient degree of dissimilarity, which is essential in protecting the trademark of the appellant (SHARBAT ROOH AFZA).

Medicated syrups and beverages concentrate cater to different markets. The impugned trademark was stated to be used in respect of a medicinal syrup and not in respect of a non-alcoholic beverage. The respondent had applied for registration of the mark ‘SHARBAT DIL AFZA’ in Class 32 for ‘syrups and beverages’, on 10.06.2018, on a ‘proposed to be used’ basis.

The Court finally held that the respondent shall not manufacture and sell any product under Class 32 under the impugned trademark ‘DIL AFZA’ till the disposal of the suit. The appeal was allowed in the aforesaid terms and all pending applications are also disposed of.

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JUDGEMENT REVIEWED BY ADITYA G S.

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