In Hamdard National Foundation (India) & Anr. v. Sadar Laboratories Pvt. Ltd., the Delhi High Court dismissed the injunction application made by Hamdard National Foundation (India) to restrain marketing of ‘Dil Afza’ which is a sharbat by another company.
Why was the injunction application filed?
The plaintiff filed the injunction application on the ground that the defendant was infringing the well-known mark of plaintiff in ‘Hamdard’ and ‘Rooh Afza’ and passing off its items as those that belong to the plaintiff by using the name ‘Dil Afza’.
It was the case of the plaintiff that the sharbat ‘Dil Afza’ is being sold in deceptively similar ringlet bottles as the ones used for ‘Rooh Afza’. The defendant, therefore, adopted a deceptively similar mark, a unique get-up and design for its product.
Question before the Court
Whether the defendant company by using the name ‘Dil Afza’ for its sharbat had infringed the well-known mark of ‘Roof Afza’ used for sharbat manufactured by the plaintiff?
No identical mark used – ‘Rooh’ and ‘Dil’
The Delhi High Court observed that the plaintiff pleaded similarity on ground that ‘Dil’ and ‘Rooh’ express deep emotion and the commonality of the word ‘Afza’. The Court gave due importance to the standard for determining confusion in the minds of the consumer would be that of imperfect memory or recollection of ordinary sensibilities.
The Court further made an observation that:
“Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’. However, we are concerned with the common consumer, to whom, in ordinary use of the words, ‘Dil’ and ‘Rooh’ do not denote the same thing. There cannot be a confusion being created on account of the meaning of the two words”.
Exclusive use of the word ‘Afza’
With respect to the exclusivity of the word ‘Afza’, the Court placed its reliance on Cadila Laboratories Ltd. v. Dabur India Limited and Vardhman Buildtech Pvt. Ltd. v. Vardhman Properties Ltd. to hold that the exclusivity can be claimed for the complete name ‘Rooh Afza’ and not to either of the two words that constitute the trademark.
Whether simultaneous use of ‘Dil Afza’ can prejudice the plaintiff’s business?
The Court noted the peaceful co-existence without any confusion in the minds of the customers and therefore, concluded that the simultaneous use of ‘Dil Afza’ cannot prejudice the plaintiff’s business.
Hence, the Delhi High Court dismissed the application and stayed the suit pending disposal of the rectification application.
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