Delhi High Court Grants Interim Injunction To 'WOW MOMO' In Trademark Infringement Suit Against 'WOW BURGER'
The Delhi High Court has granted interim injunction in favour of “WOW MOMO”, an Indian quick-service restaurant chain, in its trademark infringement suit filed against a Hong Kong-based company “WOW BURGER.”
A division bench comprising Justice C Hari Shankar and Justice Om Prakash Shukla overturned a single judge ruling of September 12 declining interim injunction to Wow Momo.
The Court said that the impugned judgement failed to notice the aspect of infringement of Wow Burger word mark by Wow Burger.
“…there can, to our mind, be no mannerof doubt that a consumer of average intelligence and imperfect reflection, who is aware of, or has seen, the appellant's mark WOW MOMO would, when he later comes across respondent's mark WOW BURGER, be, at the very least, inclined to presume the existence of an association between the two marks,” the Court said.
“This presumption of association, which arises out of the similarity between the marks WOW MOMO and WOW BURGER, and the fact that they are both used for fast food, would result, within the meaning of Section 29(2)(b) of the Act, in infringement,” it added.
The Court said that Wow Burger cannot be injuncted from solely using the word “WOW”, adding that Wow is a common English expression and in the absence of any evidence of the word “Wow”, per se, having acquired a secondary meaning, linking it exclusively with Wow Momo, the company cannot claim exclusivity over the word, if used standalone.
The Bench added that Wow Burger, however, was not using the word “WOW” by itself, but was using the word in conjunction with “BURGER”.
It said that Wow Burger's mark was not a mere “WOW” but “WOW BURGER” but when “WOW” is used in conjunction with the food item being sold by the user of the mark, it is certainly distinctive.
“WOW” is not an adjective. It cannot, therefore, be said to be descriptive of the item in connection with which it is used. At the highest, “WOW” is an exclamation. The very idea of combining the exclamation “WOW” with the food item being sold by the appellant is itself distinctive,” the Court said.
It added that the expressions WOW MOMO or WOW DIMSUMS, by itself, do not make any etymological sense, for the reason that WOW is not an adjective.
The Bench concluded that the manner of use of WOW with the name of the food item was so distinctive as to convey, to the person who sees the mark, the fact that the quality of the food is outstanding.
“This also indicates that the present case is also one of idea infringement. The idea of conveying the message that the food dispensed by it is of optimum quality by combining, with the name of the food item such as MOMO or DIMSUMS, the exclamation WOW would stand replicated if the respondent were to use WOW BURGER. In fact, it appears to us to be obvious that the respondent has, in coining and using the name WOW BURGER, borrowed the idea reflected in the appellant's marks WOW MOMO and WOW DIMSUM. Such replication of the idea of the mark, as employed by the appellant, also results in likelihood of confusion and is, therefore, often referred to as “idea infringement,” the Court said.
It added that absence of any registration held by Wow Momo for WOW word does not, in any manner, erode its claim of exclusivity over the mark WOW MOMO or impact its entitlement to relief against infringement by any other person, by use of a mark which is confusingly or deceptively similar to WOW MOMO, such as WOW BURGER.
“In the present case, the appellant has a family of marks of which WOW is the common initial prefix. The prefix WOW has, therefore, acquired distinctiveness in view of the existing family of
marks. The use of any mark, by a third person, by combining the prefix WOW with the name of a food item, would clearly result in confusion and conveying an impression to the average consumer, that the mark is yet another in the family of the marks belonging to the appellant. This is yet another reason why the respondent cannot be permitted to use the mark WOW BURGER,” the Court said.
Title: WOW MOMO FOODS PRIVATE LIMITED v. WOW BURGER & ANR