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C. HARI SHANKAR
Phonepe Private Limited – Appellant
Versus
Ezy Services – Respondent
JUDGMENT
C. Hari Shankar, J. - I.A. 8084/2019 in CS(COMM) 292/2019
1. The plaintiff and the defendants provide online payment services via their Applications ("Apps", in short). By downloading the Applications, it is possible to effect payments using the services of the plaintiff/defendants, across the internet. The defendants' services are available exclusively to merchants, whereas the plaintiff's services are available to anyone who downloads the App.
2. The plaintiff and the defendants use the marks "PhonePe" and "BharatPe" respectively. The plaintiff alleges that the mark used by the defendants, as well as the use of the word "BharatPe" itself, infringes the plaintiff's registered trademark and also amounts to passing off, by the defendants, of the services provided by them as those of the plaintiff.
3. Accordingly, the plaintiff has sued the defendants, for permanent injunction, against use, by the defendants, of 'Pe' or any deceptive variant of 'PhonePe' which is identical and/or similar to the plaintiff's trademarks 'PhonePe',
, in respect of payment services or in any other manner amounting to infringement of the plaintiff's trademark, or of passing off, by the defendants, of
Trademarks that are descriptive, like 'Pe' in 'PhonePe', cannot claim exclusivity; parties may not dissect marks but can analyze dominant features for likelihood of confusion.
The plaintiff must satisfy all the ingredients for claiming temporary injunction, including prima facie case, irreparable loss, and balance of convenience. The plaintiff's stand before different cour....
Distinctiveness in trademark law must be assessed concerning the goods or services; common terms can acquire distinctiveness based on usage, thus allowing for a prima facie case of infringement.
The court emphasized likelihood of consumer confusion in trademark law, holding that similar marks can infringe established trademarks regardless of differences in service or field, thus supporting t....
The court found that despite phonetic similarity, the distinctiveness of trade marks and differences in intended consumer bases negate the likelihood of confusion and passing off.
Where a trade mark contains generic or common-to-trade terms, the proprietor cannot claim exclusive rights over those specific words. Comparison of marks for infringement must be done as a whole; if ....
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