Delhi High Court restrains manufacture and sale of 'Dil Afza' after Rooh Afza makers allege trademark infringement

The Delhi High Court on Wednesday restrained the manufacturers of a sharbat named ‘Dil Afza’ from selling the product after Hamdard Foundation filed a trademark infringement suit alleging that it was deceptively similar to their ‘Rooh Afza’ product. [Hamdard National Foundation (India) & Anr v. Sadar Laboratories Pvt Ltd]

A Division Bench of Justices Vibhu Bakhru and Amit Mahajan passed the order after holding that there is a clear connection between the words 'Rooh', which means soul, and 'Dil' meaning heart.

“It is thus not difficult to conceive that a person who looks at the label of DIL AFZA may recall the label of ROOH AFZA as the word ‘AFZA’ is common and the meaning of the words ‘ROOH’ and ‘DIL’, when translated in English, are commonly used in conjunction,” the Court said.

In doing so, the Bench set aside an order of a single-judge which dismissed the application filed by the Rooh Afza manufacturers seeking an injunction on the sale of Dil Afza.

Hamdard Foundation moved the High Court arguing that the sale of another sharbat by the name Dil Afza (manufactured by Sadar Laboratories) is deceptively similar to Rooh Afza and that the defendants have infringed on its trademark since the words ‘Dil’ and ‘Rooh’ have similar meanings.

It was also stated that the bottles in which the two products are being sold are similar.

While the single-judge had held that the words ‘Dil’ and ‘Rooh’ would not cause confusion and that sharbat lovers would be able to distinguish between the two products, the Division Bench concluded that the two trademarks have certain phonetic similarities which can confuse customers.

After examining the packaging of the two products, the Division Bench said that there is a similarity in their trade dress because both have the same deep red colour and texture, and even the structure of the bottle was similar.

“The impression of the label is also somewhat similar in view of the colour used. The ROOH AFZA label uses colourful flowers, leaving an oval space for the mark to be depicted; and the label DIL AFZA uses has colourful fruits on the boundaries, leaving an oval patch on which the trademark ‘DIL AFZA’ is written. Both the competing labels can be described as busy considering the number of images captured therein. The overall impression of the trade dress is quite similar.”

The Court added that both are consumable and low-priced products, and therefore, the attention that the customer may devote to the product on a shelf or on an online marketplace would, at best, be cursory.

"It is not expected that the average customer would deliberate on the details of the product as one would do while taking a high value investment decision."

Therefore, the Court set aside the order of the single-judge and restrained Sadar Laboratories from manufacturing or selling syrups and beverages under the Dil Afza trademark till the disposal of the suit.

Advocates Pravin Anand, Dhruv Anand and Udita Patro appeared for Hamdard Foundation.

Senior Advocate Kirti Uppal along with Advocates NK Kantawala, Pravez Sharma, Prakhar Sharma, Riya Gulati, Ikshita Parihar, Amaya M Nair, Kunal Khanna and Swapnil Chaudhary appeared for Sadar Laboratories.

[Read Order]