The Delhi High Court in the case Dominos Ip Holder And Anr. v. Ms Dominick Pizza And Anr observed that where the trademarks in the suit pertain to the food items or eateries where food items are served, it needs to be observed that the higher degree of care and caution.
The court in the case observed that running an eating house using a mark which is deceptively similar to a reputed mark does not speak well for the concerned enterprise.
The bench of Justice C Hari Shankar in the case observed and has stated that the intent to capitalise on the reputation of a known and established brand, by using the mark which is deceptively similar to the mark used by the brand, can, in a given case, which give rise to the legitimate apprehension of quality compromise by the imitator. Therefore, the courts have to be vigilant in ensuring that, where the marks relate to consumable items or to enterprises such as hotels, restaurants and eating houses where consumable items are served to customers, such imitative attempts are not allowed to go unchecked.
The court in the case made the said observations while permanently injuncting an eatery Dominick Pizza in a suit filed by Dominos of trademark infringement.
The bench of Justice Shankar in the case observed and has restrained the Dominick Pizza from advertising, selling or marketing any product, packaging, menu cards and advertising material using the marks, Dominos Pizza, ‘Cheese Burst’ and ‘Pasta Itlaiano’ or any other mark identical or deceptively similar to Domino’s.
It has been directed buy the court that the Dominick Pizza to pay Rs. 6,57,564.20 to Domino’s.
Adding to it, the court directed the Defendant 2 to transfer, forthwith, the domain names www.dominickpizza.com and www.dominickpizzas.com to the plaintiff.
It has also been observed by the said court that the Dominos Pizza and the Dominos Pizza were an ex-facie deceptively similar to each other and that the matter has to be viewed from the perspective of a customer of average intelligence and imperfect recollection, who in the case is not over-familiar with one or the other.
The court in the case stated that if such a customer visits a ‘Domino’s Pizza’ outlet of the plaintiff on one occasion and, sometime later, visits a ‘Dominick’s Pizza’ outlet of Defendant 1, likelihood of confusion is bound to exist. Thus, the said likelihood would be exacerbated by the manner in which Defendant 1 has chosen to represent its logo, in a square format using lettering similar to that used by the plaintiffs.
In the present case, the Domino’s seek injunction against Dominick Pizza, having three outlets i.e., two at Ghaziabad, Uttar Pradesh, at Indirapuram and Raj Nagar Extension and third in Punjab.
Before the court, the Domino’s seek protection of its mark ‘Domino’s Pizza’, and the accompanying device mark, logo mark, as also the marks ‘Cheese Burst’ and ‘Pasta Italiano’.
The court observed that last year, the coordinate bench had granted ex-parte ad interim injunction in favour of Domino’s and has restrained the Dominick Pizza from advertising, selling or marketing any product or any documentation using or displaying the impugned marks ‘Dominick Pizza’, ‘Cheese Burst’ and ‘Pasta Italiano’.
The counsel, Advocate Pravin Anand, Advocate Shantanu Sahay, Advocate Imon Roy and Advocate Vareesha Irfan appeared for the plaintiffs.
None counsel appeared for the defendants.
