The use of the word “HAUS” was the essence of the dispute between two entities in the food catering business. The Plaintiff, Foodcraft India Private Limited (Foodcraft), filed passing off action before the Delhi High Court against the Defendants, Saurabh Anand Trading & Ors (Saurabh), to restrain them from using the word “HAUS” in...
The use of the word “HAUS” was the essence of
the dispute between two entities in the food
catering business. The Plaintiff, Foodcraft India
Private Limited (Foodcraft), filed passing off
action before the Delhi High Court against the
Defendants, Saurabh Anand Trading & Ors (Saurabh), to
restrain them from using the word “HAUS” in relation to
the business of food delivery.
Foodcraft in support of its case contended as follows:
- Foodcraft, incorporated in the year 2012, is engaged in
the business of delivery of Pan Asian food across Delhi
and the National Capital Region.
- Foodcraft opened its first delivery outlet under the
trademark “ASIAN HAUS” in the year 2012 in Delhi and
subsequently in neighboring areas.
- They expanded their business and opened “SUSHI
HAUS” in the year 2015, which serves Japanese cuisine.
They are also in the process of launching other outlets/
restaurants under HAUS formative marks such as
DILLI HAUS and AMMA’s HAUS for north Indian and
south Indian cuisine, respectively. The applications for
the marks ASIAN HAUS and SUSHI HAUS are pending
registration.
- The word HAUS is a German term and the adoption of the marks “ASIAN HAUS” and “SUSHI HAUS” in relation
to food is completely innovative. The trademarks have
acquired tremendous goodwill and reputation among
the public.
- In March 2017, Foodcraft learned about the activities
of the Defendants who were in the process of launching
a food delivery outlet under the mark “CURRY HAUS”.
The Defendants who are running a restaurant under the
name of “Masala House” have deceitfully adopted the
mark “CURRY HAUS” for their delivery service to take
benefit of the reputation and goodwill which Foodcraft
has acquired in the said trademarks in relation to the
food delivery business. The cease and desist notice
issued to the Defendants was not acted upon by them.
Saurabh/Defendants made the following submissions in
support of their case:
- The word “HAUS” is a non-distinctive part of “ASIAN
HAUS” and “SUSHI HAUS” and a suit for passing off
on the basis of a non-distinctive component, the word
‘HAUS’ which is otherwise common to the trade is not
maintainable.
- The word “HAUS” has been used by other parties in
India, including those in Delhi, Gurgaon, and other
metropolitan cities of India. It is commonly used as a
suffix or prefix to attribute that the food is from a home
or emanating from a house kitchen.
- The words “HAUS” and “HOUSE” are phonetically
similar, “HAUS” means “HOUSE”, and the use of
the word “HAUS” in the restaurant business is only
indicative that it is homemade food which is being
served in the restaurant or provided through its delivery
outlets.
The court after considering the pleadings, arguments, case
laws, and documents made the following observations:
- Admittedly, Foodcraft started its business under the
trade name “ASIAN HAUS” in the year 2012 and “SUSHI
HAUS” in the year 2015. The write-ups relating to
healthy eating under these brand names which serve
both Asian and Japanese cuisine reflect their popularity.
It further evidences the reputation which the “ASIAN
HAUS” and “SUSHI HAUS” acquired by innovation in
relation to home delivery outlets.
- The word “HAUS” is of German origin which means
“house” and the trade which Foodcraft is carrying on,
i.e., supply of food through its delivery outlets, is not in
any manner connected with the meaning of this word.
Foodcraft has been using the word “HAUS” for its food
delivery outlets since the year 2012, and the escalation
of its sale figures is reflective of the popularity of its
brand name; from one outlet initially, they have now
expanded to five under two brand names: “ASIAN
HAUS” and “SUSHI HAUS”. Thus, there is no doubt
that Foodcraft has acquired a distinctive reputation and
goodwill of its own under the said trade names “ASIAN
HAUS” and “SUSHI HAUS”.
- The Defendants’ act in starting the outlet under the name “CURRY HAUS” was at their own risk as they were
put on notice by Foodcraft. The Defendants’ contention
that the word “HAUS” is a well-known terminology is
misconceived. Foodcraft’s idea of food delivery is much
prior in time to that of the Defendants, and the latter’s
adoption of the word in relation to a similar line of
business is in bad faith.
- The word “HAUS” is not generic, and a customer who
orders online delivery of food would be confused with
“CURRY HAUS” and would believe it to be an extension
of the delivery outlets of “ASIAN HAUS” and “SUSHI
HAUS”.
- The argument that Foodcraft has not acted against
other entities using the word HAUS has no merit as it is
the prerogative of the party to decide.
In view of the above, the court restrained the Defendants
from using the word HAUS in relation to their food delivery
business.
Disclaimer - The views expressed in this article are the personal
views of the author and are purely informative in nature.