Foodlink F&B Holdings India Pvt Ltd (hereinafter as Foodlink) is one of India's largest F&B service enterprises operating in luxury catering, banquets, restaurants & cloud kitchens domains.
Founded in 2003 by Mr. Sanjay Vazirani and headquartered in Mumbai, today has grown considerably in terms of verticals, geographies, and overall stature to become India's largest F&B service enterprise in the luxury catering domain.
Foodlink catering has established a strong presence globally with its infrastructure and operations spanning across Europe, Turkey, and UAE markets. The brand has many strategic regional and international affiliations in India & overseas.
Indeed, their popularity was created by the famous restaurant chain "China Bistro", launched in 2012, for which they own several trademarks registered in India, UEA and UK in class 43.
In 2021, Foodlink sued WOW Momo Foods Pvt Ltd (hereinafter as WOW Momo), accusing it of infringing its trademark, registered as of 11 January 2012 in class 43, for all kinds of restaurants, bars, snack bars, hotels, cafeterias and canteens.
The defendant WOW Momo until 2019 was using the trademark WOW! CHINA.
In 2019, however, the defendant added, below the word China in the logo, the word "BISTRO".
The plaintiff's claim is that with the addition of "BISTRO" below "CHINA" in the mark, the defendant's mark became deceptively similar to that of the plaintiff, as both now read CHINA BISTRO, with the "WOW!" above "CHINA" in the defendant's mark being the only differentiating feature.
The plaintiff declared that this added 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.
During the trial, the defendant argued that, when compared in their entirety, the rival marks were not similar. Further, the plaintiff could not claim exclusivity over 'China', as is it the name of a country, nor 'bistro', a commonly used expression for restaurants and cafes – especially since it had disclaimed exclusive rights to both words in its initial registrations.
The first issue that Delhi court had to determine is whether the two marks are similar and if Foodlink could claim an infringement.
The court remarked that, seen as a whole, the plaintiff's and the defendant's marks are not deceptively similar: the plaintiff's mark consists of the word CHINA BISTRO and the defendant's mark consists of the word WOW! CHINA BISTRO, with certain added visual/pictorial.
A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade a mark which is likely to cause confusion on the part of the public because of:
(a) its identity with the registered trademark and the similarity of the goods or services covered by such registered trademark; or
(b) its similarity to the registered trademark and the identity or similarity of the goods or services covered by such registered trademark; or
(c) its identity with the registered trademark and the identity of the goods or services covered by such registered trademark.
These brought to prima facie finding of infringement, for which there is 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.
The defendant seeks to question the entitlement of the plaintiff to plead infringement on the ground that, while securing registration of the mark CHINA BISTRO (No. 1470912), the plaintiff had clearly disclaimed exclusivity both for the word "CHINA" and the word "BISTRO".
Additionally, they would seek to contend that 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 a commonly used expression regarding the restaurants, cafes and similar.
Having disclaimed exclusivity both in respect of "CHINA" and "BISTRO", WOW Momo claimed that the plaintiff cannot claim exclusivity for the composite mark CHINA BISTRO.
Delhi High Court disagreed. The only purpose of associating trademarks is so that they are assignable and transmissible as a whole, not separately.
Even if previous disclaimers were applicable, they would bar an infringement action claiming exclusivity over the terms 'China' or 'bistro' individually, but not based on proprietary rights over the composite mark CHINA BISTRO. That is because disclaiming exclusivity in respect of the individual parts of a mark does not result in disclaiming exclusivity over the composite mark as a whole.
Regarding the defendant's argument that neither 'China' nor 'bistro' were individually registrable as a mark, the court held that two ordinary words, though completely lacking in distinctiveness when seen individually may, when combined together, be distinctive.
WOW Momo's marks were therefore held to be deceptively similar, as their textual components, which constituted their essential and distinctive features, were deceptively alike.
Thus, the court ordered the defendant to cease the usage of the mark WOW! CHINA BISTRO and its stylized version. However, it was clarified that the defendant would be entitled to use the mark WOW! CHINA.
WOW Momo appealed but the appellate court's verdict was the same. The litigation is ongoing, but it is unsure whether the defendant will appeal the findings of the appellate court to the Supreme Court.
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