Trademark infringement case: Delhi High Court restrains Wow! Momo from using mark 'Wow! China Bistro'

The Delhi High Court recently restrained the fast-food chain Wow! Momo from using the trademark ‘Wow! China Bistro’ after China Bistro filed a suit alleging an infringement of its trademark [Foodlink F and B Holdings Private Limited v Wow Momo Foods Private Limited]. .Justice C Hari Shankar passed the interim order on August 3.The Court held that prima facie, the two marks were deceptively similar and that a customer of ‘average intelligence’ and ‘imperfect recollection’ may believe that the two restaurants are managed by one person or that there is an association between the two."A customer of average intelligence and imperfect recollection comes, one day, across the plaintiff’s CHINA BISTRO eatery. A few days later, he chances across the defendant’s WOW! CHINA BISTRO outlet. He is not a customer who is aware of the reputation of one mark or the other, for we are dealing, presently, with infringement, not passing off. To my mind, the likelihood of the customer being given to wonder whether the two outlets are not managed by one person, or whether there is no association between the two, is apparent,” the Court said..It, therefore, restrained Wow! Momo and all others acting on its behalf from using the mark or name Wow! China Bistro as a “trademark, label, device, trading style, trade name, logo, keyword, meta tag, domain name, or in any other manner, identical or deceptively similar to the Plaintiff’s mark CHINA BISTRO till further orders to be passed in the suit.”The Court, however, clarified that Wow! Momo can use the mark ‘Wow! China’..In its suit, China Bistro (plaintiff) submitted that Wow! Momo was earlier using the mark ‘Wow China’. However, in 2019, it added the word "Bistro", which made it very similar to 'China Bistro'.Wow! Momo countered that neither the word "China" nor "Bistro" is individually registrable as a mark and that China Bistro has disclaimed exclusivity over both..After considering the submissions, the bench gave a prima facie finding that the mark ‘China Bistro’ is not an ordinary combination of two words, completely wanting in any element of inventiveness or ingenuity.“Even if “BISTRO” is treated as a synonym for cafeteria or café, it is not an expression which is normally used. It may have been quite different if, for instance, the defendant’s mark was CHINESE CAFÉ. The mark would then be plainly descriptive, and lacking in any element of distinctiveness which would distinguish it from any other Chinese eating house. The composite mark CHINA BISTRO, however, in my view, cannot be said to be lacking in distinctiveness, when seen as a whole, in the absence of any evidence or material to that effect led by the defendant," the Court said. The Court rejected the argument that the plaintiff was disentitled from claiming exclusivity over the ‘China Bistro’..Senior Advocate Chander Mohan Lall along with advocates Sarthak Sachdeva, Ashish Batra, Ananya Chugh, and Wattan Sharma appeared for China Bistro.Wow! Momo was represented through advocates Shuvasish Sen Gupta, Kumar Vivek Vibhu and Abhrajit Roy Chowdhry..[Read Order]