Bombay High Court Restrains Cloud Kitchen From Using 'BARBECUE' Mark Over Phonetic Similarity With Restaurant

Phonetic Similarity Trumps Geographic Distance

The Nagpur Bench of the Bombay High Court, in a significant ruling on September 1, 2026, granted an interim injunction against a cloud kitchen using the mark “BARBECUE” or “BARBEQUE”, finding that phonetic similarity with a long-established restaurant’s name was likely to cause consumer confusion. Justice Y.G. Khobragade allowed an appeal filed by Tervinder Singh Jhans, the proprietor of the Barbecue restaurant at Sadar, Nagpur, overturning the District Court’s refusal to grant interim relief.

The Dispute: A Restaurant and a Cloud Kitchen

The appellant, Tervinder Singh Jhans, along with his entities M/s Barbecue and Barbecue Food Services Pvt Ltd, has been operating a restaurant under the name “BARBECUE/BARBEQUE” at Sadar, Nagpur since 1994. The business holds a registered device mark featuring the word “BARBECUE” in a distinctive cursive style with a diamond-shaped logo, and has obtained copyright registration for the artistic work. In November 2022, Jhans discovered that the respondents — Pankaj Rai, Kumkum Pankaj Rai, Mrityunjay Surendra Singh, and Epices Hospitality (OPC) Pvt Ltd — were operating a cloud kitchen under the name “Barbeque Gokulpeth” and supplying food through online platforms Zomato and Swiggy.

Jhans filed a trademark suit before the District Judge-15, Nagpur, seeking a temporary injunction to restrain the use of the mark. The District Court, however, dismissed the application, holding that the two businesses operated from different geographical locations (Sadar and Gokulpeth) and that the mark “BARBECUE/BARBEQUE” was not exclusively associated with the plaintiff so as to constitute passing off.

Appellant’s Arguments: Prior Use and Phonetic Similarity

Senior Counsel M.V. Samarth, appearing for the appellants, argued that the restaurant had acquired substantial goodwill and reputation over 30 years of continuous use. The plaintiffs held registered trademarks under Classes 42 and 43, as well as copyright registration for the artistic work. Samarth contended that the respondents’ use of the phonetically identical word “Barbeque” in their business name was deceptively similar and likely to mislead consumers, especially when orders were placed through online food delivery platforms. He submitted that the trial court had failed to consider the modern consumer’s behavior on aggregator platforms like Zomato and Swiggy, where the name “Barbeque Gokulpeth” could easily be mistaken for a branch of the plaintiff’s restaurant.

Respondents’ Defense: No Infringement, Different Words

Advocate C.S. Dharmadhikari, representing the respondents, argued that “BARBECUE” and “BARBEQUE” were distinct words and that the respondents used the word “Barbeque” as part of their address (“Gokulpeth”), not as a trademark. He emphasized that the plaintiffs’ registration was for a composite device mark, not for the word mark alone, and that the respondents operated a cloud kitchen without any logo or label similar to the plaintiffs’. The respondents also pointed out that their business was located at a different area and that the plaintiffs’ application for the word mark “BARBEQUE” was still pending before the Registrar.

Court’s Analysis: Phonetic Similarity Constitutes Infringement

Justice Khobragade examined the law laid down by the Supreme Court in Renaissance Hotel Holdings Inc. v. B. Vijaya Sai , where it was held that the use of a phonetically and visually similar mark can amount to infringement under Section 29 of the Trade Marks Act, 1999. The court also relied on Parle Products (P) Ltd. v. J.P. and Co. , which established that the overall similarity of marks, rather than minute differences, must be assessed from the perspective of an average consumer.

The High Court rejected the trial court’s reasoning based on geographic distance, noting that the respondents were using the mark on online platforms accessible across Nagpur. It observed: “The Word 'Barbeque' and 'Barbecue' are phonetically similar words… The defendants are carrying the business of supply of Food items through Online Platform by using the phonetically similar name 'Barbecue' of the plaintiffs Restaurant.”

Key Observations

The court recorded that the plaintiffs had established prima facie evidence of goodwill and reputation, with sales of approximately ₹39 crore over 26 years. It found that the defendants had not obtained any registration for the mark and had adopted the name without justification. The judgment noted:

“If the defendants are permitted to continue to carry their business under the phonetic name 'Barbeque', it will certainly cause irreparable loss and injury to the plaintiffs goodwill and reputation in the market.”

The High Court described the trial court’s order as “perverse and unsustainable in law,” as it had been passed without proper appreciation of the material and the governing legal principles.

The Decision

The appeal was allowed. The impugned order of the District Judge-15, Nagpur, dated August 4, 2026, was quashed and set aside. The court restrained the respondents, their partners, agents, assigns, and all persons claiming through them from using, selling, advertising, circulating, displaying, or marketing any mark identical or deceptively similar to the plaintiffs’ trademark “BARBECUE/BARBEQUE”, label, device, or copyrighted artistic work during the pendency of the suit. No order was made as to costs.

The ruling serves as a reminder that in the digital age, the reach of a business name extends beyond its physical location, and phonetic similarity alone can justify interim protection for a well-established mark.