Delhi High Court’s ‘WOW China Bistro’ Injunction: A Relook at Deceptively Similar Marks and Injunction Principles

Recently, in the case of Foodlink F and B Holdings India Private Limited v. Wow Momo Foods Private Limited, the Delhi High Court issued a temporary injunction against using the trademarked phrase “Chinese Bistro.” The matter was presented before a single-judge bench consisting of Justice Shankar, pertaining to a lawsuit initiated by Foodlink F and B Holdings India Private Limited. The lawsuit alleged trademark infringement of their registered mark “China Bistro,” acquired in January 2012 by Wow Momo Foods Private Limited.

The essence of the case revolved around Wow Momo’s alteration from using the mark “WOW! CHINA” to “WOW! CHINA BISTRO” subsequent to December 2019. Foodlink F and B Holdings argued that this change made Wow Momo’s mark deceptively akin to theirs, as both now displayed “CHINA BISTRO,” with “WOW!” preceding “CHINA.” It was contended that adding “WOW!” did not mitigate potential confusion or deception among average customers with imperfect recollections.

Granting a temporary injunction in favor of the plaintiff, the Court restrained the fast food chain WOW! Momo from employing the mark “WOW China Bistro” based on allegations of trademark infringement by an entity operating restaurants under the registered mark “China Bistro.” The Court’s decision hinged on two factors:

  1. Degree of Confusing or Deceptive Similarity:

The Court noted that a comprehensive comparison revealed deceptively similar textual components between the two marks in the light of Section 29(2) of the Trade Marks Act, 1999. They were identical except for the prefix “WOW!” in the defendant’s mark.

  • Plaintiff’s Entitlement to Claim Infringement:

The Court examined the assertion of trademark rights over both “China” and “Bistro” within the framework of Section 44 of the Trade Marks Act. This assessment was particularly pertinent considering the publici juris nature of the term “China,” given its widespread use in the context of restaurants, cafes, and similar establishments. Section 44 elucidates that trademarks are consolidated to be transferable and transmissible as an integrated entity rather than in isolation.

The Court further elucidated that even if the individual components lacked distinctiveness in isolation, their amalgamation within the composite mark could confer it. The Court underscored that the composite mark “CHINA BISTRO” possessed distinctiveness when considered as a unified entity, especially in the absence of any evidentiary grounds provided by the defendant to the contrary.

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.” the Court expressed.

The Court also offered clarification that WOW! Momo was well within its rights to continue utilizing the marks “WOW! CHINA” or the “WOW! CHINA LIVE CHINESE” logo.

To substantiate the issuance of the injunction, the Court invoked the provisions of Section 31(1) of the Trade Marks Act, thereby affording the plaintiff the presumption of a valid and eligible mark unless the defendant could establish otherwise through substantiated evidence and argumentation.

Hence, with the Delhi High Court having indulged in an in-depth analysis of the law and the precedents on trademark infringement, this case offers the legal community a comprehensive and essential relook into the concepts of deceptively similar marks and the principles governing the grant of injunctions.

About Tejaswini Kaushal 17 Articles
Ms. Tejaswini Kaushal is a 3rd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She is keenly interested in Intellectual Property Law, Technology Law, and Corporate Law.

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