SC refuses appeal against Delhi HC order restraining manufacture and sale of ‘Dil Afza’

New Delhi [India], May 17 (ANI): The Supreme Court on Wednesday refused to entertain an appeal against the Delhi High Court’s decision to restrain the manufacture and sale of ‘Sharbat Dil Afza’ during the pendency of a lawsuit for alleged trademark infringement filed by ‘Rooh Afza’ makers.

A bench headed by Chief Justice of India DY Chandrachud said, “We will not interfere. Dismissed.”

The court also said that Rooh Afza is a well-established product across the country and questioned the other company for selling some sharbat identical to it.

The Supreme Court said that the high court had held it correctly in its decision.

In December 2022, the Division Bench of the Delhi High Court allowed the appeal of the Hamdard Group of Companies challenging the order passed by a Single Judge in the suit filed by Hamdard against Sadar Laboratories Pvt Ltd for trademark infringement and passing off.

The controversy in the present case relates to a word mark ‘Sharbat Dil Afza’ registered by Sadar Laboratories under classes 5 and 32, which Hamdard claims infringes its trademark ‘Sharbat Rooh Afza’.

Given the overall commercial impression, prima facie, we are of the view that the impugned trademark lacks a sufficient degree of dissimilarity, which is required to protect the appellant’s trademark, said the Division Bench of Delhi HC said.

The Division Bench also concluded that a person who looks at the respondent’s ‘Dil Afza’ label mark may recall the label of the Appellant’s ‘Rooh Afza’ mark, especially since ‘Afza’ is common to both of them and the words ‘ROOH’ and ‘DIL’ when translated in English are commonly used in conjunction.

The appellants have also filed an affidavit of an investigator indicating that the market presence of products sold under brand names incorporating the word ‘AFZA’ is not significant. Most of them are not available or do not relate to beverages. Absent any material to show that there are significant sales of products under the brand names that include the word ‘AFZA’, it would be erroneous to accept that the word ‘AFZA’ is common to trade.

The Division Bench also observed that the propensity for confusion on account of a similar meaning has to be understood in a wider sense. It is not essential that the competing brands be synonymous. Given that chords of memory are connected by the association of ideas and subjects; a wider conceptual association between the meaning of the competing brands may be sufficient to cause consumer confusion.