Reinforcing the test of unwary Consumer: Facebook versus Facebake
In a recent trademark infringement suit filed by the social media giant Meta (formerly known as Facebook), the Delhi High Court has permanently restrained a Bangalore-based bakery from using the marks ' 'Facebake' and 'Facecake' for its business. The Court also awarded nominal damages of Rs.50,000 ($628.50) in favour of Meta Platforms Inc. and against the Defendants.
The Plaintiff alleged that Defendant no.1, namely Noufel Malol, was mimicking the visual presentation by copying the colour scheme, font, commercial impression, and overall look and feel of Facebook, and thus was intentionally trading off the significant goodwill established in "Facebook‟ marks.
The Plaintiff further claimed that on receipt of the ad-interim injunction order, the Defendant changed its “Facebake” mark to “Facecake,” which was equally infringing upon the rights of the Plaintiff.
The Hon’ble Court, while acknowledging the well-known status of Meta’s Facebook marks, held, “It cannot seriously be disputed that the marks of the plaintiff are well-known in India. Its user base and its reach are evident from the documents that have been filed by the plaintiff. The plaintiff also has obtained registrations of its marks for various classes of goods, and the use of a similar mark without due cause would certainly amount to unfair competition, which is detrimental to the distinct character and reputation of the plaintiff's 'Facebook' marks”.
The court permanently restrained the Defendant, its subsidiaries, affiliates as well as anyone acting for or on its behalf from using the 'Facebake' and “Facecake'' marks, as well as from using the domain name and email address containing the infringing mark(s). The Court, while restraining the Defendant from making any form of use of its infringing marks, held that “It can lead to an unwary consumer being at least interested in taking note of the defendants as having some kind of connection with the plaintiff. The mala fide intent of the defendants is also evident from the fact that upon the knowledge of the ad-interim injunction passed by this court, the defendants changed the mark from Facebake to Facecake, thereby changing only one alphabet, however, chose not to appear before this court to defend the suit despite service”.
Vide its restraining order, the Hon’ble Court also directed that all finished and unfinished material, including locks, signage, cards, stationery, accessories, packaging, and labels, among others in possession of the Defendant, must be handed over to Meta for erasure or destruction.