Trademark Infringer's Objective Is Served By Diverting Customer's Initial Attention: Delhi HC Rules Against 'Hotelscom' In Suit By Hotels.com

Justice Tejas Karia observed that the Test proceeds on the principle that confusion in the minds of consumers may arise even at the preliminary stage, prior to the actual purchase being completed.

The bench observed that at the point of finalising the transaction, the consumer may no longer be in doubt as to the true origin of the goods or services. Nonetheless, even such transient confusion at the initial stage is sufficient to meet the requirement of deceptive similarity under Section 29 of the Trade Marks Act, 1999.

“The infringer's objective may be served merely by diverting the consumer's initial attention. The consumer may, thereafter, consciously opt for the infringer's product on account of its own characteristics, with complete knowledge that it is unconnected with the registered Trade Mark. The Defendants' use of the Impugned Marks is with the purpose of causing confusion in the mind of the customers to generate traffic to the Impugned Marks riding upon the goodwill of the Plaintiff's Mark” it observed.

Reliance was also placed on Under Armour Inc v. Anish Agarwal & Anr where a division bench of the HIgh Court had held that even a momentary confusion between two competing trademarks in the mind of a consumer is sufficient to constitute trademark infringement.

Plaintiff Hotels.com is a provider of consumer-direct hotel accommodation services and claims to have tie-ups with some renowned chains such as Taj Palace, Holiday Inn, The Leela Palace, The Lalit, Shangri-La Eros, Radisson Blue, JW Marriott, ITC Maurya, The Oberoi, Le Meridien, Four Points by Sheraton, etc.

It submitted that Defendants are using the Impugned Marks, which are phonetically identical and structurally similar to the Plaintiff's Mark in connection with intercom / room service receivers.

Defendants on the other hand stated that their services are geared towards hotel owners and hoteliers and, therefore, the customer sophistication i.e., the concept of sophisticated buyers, such as those who have expertise in a specific area, are less likely to be confused by similarities in the Marks.

Plaintiff then relied on the initial interest confusion to contend that even if pursuant to visiting the Defendants' website consumers realise that the latter is in fact not the services of the Plaintiff, the same still gives rise to the category of confusion.

“If a web user uses a Trade Mark because they are looking for the site of the company that owns the Mark, initial interest confusion caused by the domain name of the Defendants may deceive and lure the web user to the Impugned Website. Even though when the web users access the Impugned Website they find that it is not the Plaintiff's Website, the Defendants have succeeded in luring users to their site thus, resulting in passing off,” it was contended.

Agreeing, the High Court said, “In view of the overall similarity between the Plaintiff's Mark and the Impugned Marks, the Defendants' infringing activities are bound to cause confusion in the minds of the consumers, who will assume the Defendants' products and services to have originated from the business or house of the Plaintiff…A clear case of infringement of the Plaintiff's Mark is made out…Therefore, the Plaintiff has established a case of passing off as well.”

As such it decreed the suit in favour of Plaintiff and awarded ₹5,00,000/- damages.

Appearance: For the Plaintiff : Mr. Prithvi Singh, Mr. Rohan Seth & Ms. Vanshika Singh, Advs. For the Defendants : None

Case title: Hotels.com LLP v. Barath M L & Anr.

Citation: 2025 LiveLaw (Del) 1209

Case no.: CS(COMM) 1133/2024

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