A division bench of the Delhi High Court recently, in its appellate jurisdiction, set aside an order of a single judge refusing to grant an interim injunction in favour of Hamdard National Foundation (“Appellant”).
The Appellant had originally filed a civil suit to restrain Sadar Laboratories (“Respondent”) from using the mark SHARBAT DIL AFZA or any other marks deceptively similar to its famous mark ROOH AFZA in respect of sharbats (syrups). The single judge had denied granting the interim injunction on the ground that the Appellant cannot claim exclusivity over the “common to trade” component of its mark, i.e., AFZA. He was of the view that, in the absence of any registration for the standalone term, AFZA, the Respondent cannot be restrained from using this term.
The division bench, while agreeing that the rival trademarks cannot be dissected and must be compared as a whole, noted that the word AFZA is an integral part of both the marks. It observed that the Appellant’s mark ROOH AFZA was a source identifier for over a century and that the word AFZA was not descriptive of sharbat or a common to trade term. It further noted that the commercial impression of the DIL AFZA mark and trade dress was deceptively similar to that of the ROOH AFZA mark and trade dress. Accordingly, the court set aside the impugned order and restrained the Respondent from using the mark DIL AFZA until the disposal of the suit.
Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Ltd., FAO(OS) (COMM) 67/2022, Order dated December 21, 2022