Delhi High Court Restrains Wow! Momo from using 'Wow! China Bistro' in Trademark Infringement Case
Rejects the argument that the plaintiff was disentitled from claiming exclusivity over the mark
The Delhi High Court has 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.
In the Foodlink F&B Holdings Private Limited vs Wow Momo Foods Private Limited case, Justice C Hari Shankar passed the interim order and held that prima facie, the two marks were deceptively similar.
He added that a customer of ‘average intelligence’ and ‘imperfect recollection’ may believe that the two restaurants were managed by the same person or that there was an association between the two.
The Court stated, "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.
The Judge added, “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.”
Thus, the Court 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.”
However, the Court clarified that Wow! Momo could use the mark ‘Wow! China’.
The plaintiff, China Bistro had submitted that Wow! Momo was using the mark ‘Wow China’. However, in 2019, it added the word ‘Bistro’, which made it very similar to 'China Bistro'.
On the other hand, Wow! Momo countered that neither the word ‘China’ nor ‘Bistro’ was individually registrable as a mark. It added that China Bistro disclaimed exclusivity over both words.
The Bench ruled that the mark ‘China Bistro’ was not an ordinary combination of two words, completely wanting in any element of inventiveness or ingenuity.
It stated, “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 Judge added, “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.”
Thus, the Court rejected the argument that the plaintiff was disentitled from claiming exclusivity over the ‘China Bistro’ mark.
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 by Advocates Shuvasish Sen Gupta, Kumar Vivek Vibhu, and Abhrajit Roy Chowdhry.