In the suit before the Single Judge of Delhi High Court, the appellants had claimed that use of marks like “SHARBAT DIL AFZA” or “DIL AFZA” are likely to cause confusion and amounted to infringe their trademark ‘ROOH AFZA’. By an order dated 15.12.2020, the learned Single Judge recorded an undertaking given by the respondent that it would not manufacture and sell syrups and beverages falling under Class 32 bearing the mark ‘DIL AFZA’. However, subsequently, the Learned Single Judge held that the appellants can claim exclusivity only in respect of the complete trademark ‘ROOH AFZA’ and not the two words – ‘ROOH’ and ‘AFZA’ – that constitute the trademark.
Therefore, an appeal before the Division Bench was filed against the order of the Learned Single Judge. The Division Bench addressed whether meaning of the words ‘ROOH’ and ‘DIL’, at some level, have a mental impact that would lead a person of imperfect recollection to be confused between the two trademarks. It was held that it is not essential that the competing brands be synonymous. Given that the chords of memory are also connected by association of ideas and subjects; a wider conceptual association between the meanings of the competing brands may be sufficient to add to consumer confusion.
The similarity of the same deep red colour and texture of the two products and the overall trade dress were considered. If one considers the overall impression of the product, the fact that both the bottles are transparent and the colour of the liquid is the same would, undoubtedly, add to the impression of the product that may be recalled by any consumer. In addition, it is relevant to note that the structure of the bottles is not materially different. Both the bottles also have circular rings and the position of the trademark label is similar.
The Division Bench held that given the overall commercial impression, prima facie, the impugned trademark lacks sufficient degree of dissimilarity, which is required to protect the appellant’s trademark. The Learned Single Judge’s order was set aside and wherein the Learned Single Judge by an order dated 15.12.2020 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’, was 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.
