Sherbat Lemon: Delhi High Court opens new doors for trademark litigation

Consumers tend to recognize their favorite brand labels as a whole, not in fragments. This is generally the opinion of the courts when hearing disputes over similar trademarks. However, a dissenting opinion was taken by the Delhi High Court in the case of National Foundation Hamdard & Anr. vs. Sadar Laboratories. [1]

The National Hamdard Foundation (hereinafter referred to as “Hamdard”) filed a trademark infringement action against Sadar Laboratories (“Sadar”) for using the trademark “Dil Afza” in Class 32, for the purpose of manufacturing and selling sherbat, which deceptively resembles Hamdard’s popular sherbat “Rooh Afza”.

Hamdard has a registered trademark Rooh Afza in class 32 for fruit drinks. She claimed that her product is “unique in its color combination, layout and features, with a specific floral arrangement on the bottles.” Hamdard has been selling Rooh Afza sherbat since August 1942 and claims that it has now achieved well-known brand status. Hamdard claimed that Sadar was deceptively selling sherbat under a similar brand – Dil Afza. Hamdard further claimed that Sadar has claimed use of the Dil Afza mark since 1949, however, no document to that effect has been entered into the court record.

On the other hand, Sadar maintained that the Rooh Afza and Dil Afza brands co-existed peacefully for pharmaceutical products where the parties were involved in the sale of drugs and there was no confusion among consumers. Therefore, Hamdard’s allegation that selling sherbats under the same name would create confusion must be dismissed. Sadar also explained that his label is distinct because it contains fruit and the bottle has a brown cap as opposed to the flowers appearing on the Hamdard label and the yellow cap on the Hamdard.

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The Delhi High Court Bench, reviewing Hamdard’s claims, observed that Rooh Afza’s goodwill and reputation cannot be overlooked. However, while siding with Sadar, the Court held that the acceptance of the marks in question as being identical”would take an extreme position”. The Court then divided the trademark Rooh Afza into “Rooh” and “Afza” and declared that the term “Afza” can only be associated with Hamdard’s product and therefore Sadar could not be prevented from using such a word for its label since no separate registration for the word “Afza” had been filed by Hamdard.

The Court also considered Sadar’s assertion that there was no confusion regarding the terms used on the pharmaceutical front, and ruled that Sadar had been using “Dil Afza” for Unani drugs at least since 1976 and apparently there has been peaceful coexistence without confusion in the minds of consumers. Therefore, even though sherbat has only been produced since 2020, no case had been established to stop Sadar from marketing his sherbat as “Dil Afza”.

The Honorable Bench observed that no interim injunction will be granted against Sadar but they have been requested to submit their accounts and quarterly reports for record until the prosecution decides.

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