Seizing the moment:Delhi High Court grants interim injunction against use of the mark EVENING MOMENT
The Hon’ble High Court of Delhi, in a recent trademark dispute between Radico Khaitan Limited vs Sarao Distillery (OPC) Pvt. Ltd & Anr.  granted an ex-parte ad interim injunction against the Defendants for use of the mark “EVENING MOMENT”, which was held to be deceptively similar to the Plaintiff’s mark “MAGIC MOMENTS”, both being used for alcoholic beverages. The Court, vide its restraining order, prevented the Defendants from using the mark 'EVENING MOMENT' or any other mark consisting of the word 'Moment/Moments' in respect of any alcoholic beverages manufactured, sold or offered for sale by them.
The Plaintiff in the present matter is one of the largest manufacturers and sellers of Indian Made Foreign Liquor (IMFL) and one of its leading products is branded as ‘MAGIC MOMENTS’. The word mark ‘MAGIC MOMENT’ was adopted by the Plaintiff in the year 1997 and various Gin and Vodka products were launched under the trademark ‘MAGIC MOMENTS’ in the year 2005. Since then, the aforementioned trade mark has been in continuous use in an extensive and uninterrupted manner. The Plaintiff presented several documents to demonstrate that the mark ‘MAGIC MOMENTS’ has been understood to be associated with them.
The Plaintiff claimed that the Defendants were using the mark ‘EVENING MOMENT’ with regards to whisky manufactured by them and that this mark was deceptively similar to the Plaintiff's mark ‘MAGIC MOMENTS’ which is registered in Class 33 for alcoholic beverages. The Plaintiff stated that the word ‘MOMENTS’ is the essential and dominant feature of their mark ‘MAGIC MOMENTS’ and relied upon the various registrations of the word ‘MOMENTS’ and ‘MAGIC MOMENTS’ in their favour. Accordingly, the Plaintiff sought an injunction in respect of the use of the mark ‘EVENING MOMENT’ by the Defendants.
In deliberating upon the present matter, the Court relied upon the judgement of Shree Nath Heritage Liquor Pvt. Ltd. v. Allied Blenders & Distillers Pvt. Ltd., wherein it was held that the word mark ‘Officer's Special’ is deceptively similar to the trademark ‘Officer's Choice’ by taking into consideration the nature of goods/services in respect of which the trademarks are used, the class of purchasers who are likely to buy the goods, mode of purchasing the goods or placing orders for the goods and the intention of the Applicant. Further, reliance was placed upon the observations of the Court in the case of South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., where the contention that the word ‘D'DAAZS’ does not result in complete appropriation of the mark ‘HAAGEN DAZS’ was rejected by the Court by the reason of the same forming a dominant feature of the mark and holding that dominant features of a mark are significant because they attract attention and are relied upon by consumers for identification of the product.
After a perusal of all the documents placed on record, the Court held that “the marks ‘MAGIC MOMENTS’ and ‘EVENING MOMENT’ are deceptively similar in view of the fact that the essential feature ‘MOMENT’ is being used in toto by the Defendants. The use of the word ‘MOMENT’ in the Defendant’s mark could lead consumers to connect the said product to the Plaintiff. It can be easily perceived that the Defendant’s product is another addition to the Plaintiff’s product-stable. Moreover, the use of the word ‘EVENING’ is not sufficient to distinguish the two products due to the very nature of the product which is usually consumed in evening times. The focus would be on the word ‘MOMENT’ which is the dominant part of the impugned mark.”
Accordingly, the Court passed an interim order restraining the Defendants from using the mark ‘EVENING MOMENT’ or any other mark which consists of the word ‘MOMENT/MOMENTS’ in respect of any alcoholic beverages manufactured, sold, or offered by sale by them.
Determining deceptive similarity between two marks can be complex and therefore, the courts have time and again established several guidelines and factors to determine such similarity. The present decision of the Delhi High Court establishes that in order to determine whether two marks are deceptively similar, emphasis has to be also laid on the dominant part of the concerned marks, the nature of goods/services as well as the class of consumers.
1. RADICO KHAITAN LIMITED v. SARAO DISTILLERY (OPC) PVT. LTD. & ANR., CS (COMM) 131/2021https://www.casemine.com/judgement/in/6248a25e9fca192fa5ead735
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