 "Delhi High Court")
Buying a bottle of 'sharbat' may involve emotions, but not to the extent hoped for by manufacturers of 'Rooh Afza', the Delhi High Court said while refusing to pass an interim order to restrain 'Dil Afza' manufactures from allegedly indulging in trademark infringement.
Hamdard Dawakhana and Hamdard National Foundation (India) filed a lawsuit before the high court seeking protection against disparagement and dilution of their trademark 'Rooh Afza' by Sadar Laboratories Pvt Ltd's 'Dil Afza'.
The plaintiffs sought an interim order of injunction against the defendant, contending that the two products were deceptively similar as the words 'Dil' and 'Rooh' entail deep emotions and that the word 'Afza' is common to both.
Justice Asha Menon said that prima facie, Hamdard has built a vast reputation and goodwill in respect of their trademark 'Rooh Afza' but it would be extreme to believe that the use of the word 'Rooh' and 'Dil' would cause confusion because they connote deep emotion.
The court stated that there could be no confusion as to the common consumer, the ordinary use of the words, 'Dil' and 'Rooh' did not denote the same thing.
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"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," the judge said in her order passed on Thursday.
"The similarity is sought on the ground that 'Dil' and 'Rooh' entail deep emotions and that the word 'Afza' is common to both... It would be taking an extreme position, even if the consumers were connoisseurs, to believe that the use of the word 'Rooh' and 'Dil' would cause confusion because they connote deep emotion," she added.
The court dismissed the plaintiff's application for interim relief, saying that no case was made out to restrain the defendant from marketing its 'sharbat', and directed the defendant to maintain a true account of sales of 'Dil Afza' syrup/sharbat during the pendency of this suit and to submit the same to the court on a quarterly basis.
The defendant opposed the grant of interim relief in the case and stated that the word 'Afza', which meant increasing or adding, was common to the trade of 'sharbat' and there were many players in the market who were using that word.
It was stated that there was a great difference between the words 'Dil' and 'Rooh' as well as the former meant 'heart' and the other meant 'spirit'.
The defendant also informed that 'Dil Afza' was in use since 1949 and there has never been any confusion with the plaintiffs' product.
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