Delhi HC restrains sale of Sharbat DIL AFZA in trademark suit of 'Sharbat ROOH AFZA'
Dec 22, 2022
New Delhi [India], December 22 : The Division Bench of the Delhi High Court has allowed the appeal of the Hamdard Group of Companies challenging the order passed by a Single Judge in the suit filed by Hamdard against Sadar Laboratories Pvt. Ltd. for Trademark Infringement and Passing Off.
The controversy in the present case relates to a word mark 'Sharbat DIL AFZA' registered by Sadar Laboratories under Classes 5 and 32, which Hamdard claims infringes its trademark 'Sharbat ROOH AFZA'.
The Division Bench comprising Justice Vibhu Bakhru and Justice Amit Mahajan in a Judgement passed on December 21, 2022 said, by an ad interim order dated 15.12.2020, the learned Single Judge had recorded the statement made on behalf of the respondent (defendant) that the respondent would not manufacture and sell syrups and beverages falling under Class 32 under the impugned trademark 'DIL AFZA'.
"The said ad interim order is made absolute and shall continue till the disposal of the suit. 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 is allowed in the aforesaid terms", said the Division Bench.
Given the overall commercial impression, prima facie, we are of the view that the impugned trademark lacks sufficient degree of dissimilarity, which is required to protect the appellant's trademark, said the Division Bench.
Prima facie, the word 'ROOH AFZA' has served as the source identifier for the appellant's product for over a century and it has acquired immense goodwill. We are of 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, added the Division Bench in order.
The Division Bench also concluded that a person who looks at the Respondent's 'DIL AFZA' label mark may recall the label of the Appellant's 'ROOH AFZA' mark, especially since 'AFZA' is common to both of them and the words 'ROOH' and 'DIL' when translated in English are commonly used in conjunction.
The appellants have also filed an affidavit of an investigator indicating that the market presence of products sold under brand names incorporating the word 'AFZA' is not significant. Most of them are not available or do not relate to beverages. Absent any material to show that there are significant sales of products under the brand names that include the word 'AFZA', it would be erroneous to accept that the word 'AFZA' is common to trade.
The Division Bench also observed that the propensity for confusion on account of a similar meaning has to be understood in a wider sense. It is not essential that the competing brands be synonymous. Given that chords of memory are connected by association of ideas and subjects; a wider conceptual association between the meaning of the competing brands may be suffice to cause consumer confusion.
Team Anand and Anand appeared for Hamdard Group including Advocates Pravin Anand, Dhruv Anand, Udita Patro, Sampurnaa Sanyal, Nimrat Singh, Shivender Pratap Singh and Sunil.
