'Curry Haus' shutdown over objection from 'Asian Haus' and 'Sushi Haus' The use of the word "HAUS" was the essence of dispute between two entities in food catering business. The Plaintiff, Foodcraft India Private Limited (Foodcraft) filed passing off action before the Delhi High Court against the Defendants, Saurabh Anand Trading & Ors (Saurabh), to restrain them from using the word "HAUS" in relation to business of food delivery service.
Foodcraft in support of its case contended:
- Foodcraft, incorporated in the year 2012 is engaged in the business of providing delivery of Pan Asian food across Delhi and National Capital Region.
- Foodcraft opened its first delivery outlet under the trademark 'ASIAN HAUS' in the year 2012 in Delhi and subsequently in neighbouring areas.
- They expanded their business and have opened 'SUSHI HAUS' in the year 2015 which caters to Japanese cuisine. They are also in the process of launching other outlets/restaurants under HAUS formative marks such as DILLI HAUS and AMMA's HAUS for north Indian and south Indian cuisine. The applications for the marks ASIAN HAUS and SUSHI HAUS are pending registration.
- The word HAUS is a German term and adoption of the marks 'ASIAN HAUS' and 'SUSHI HAUS' in relation to food is completely innovative and the trademarks have acquired tremendous goodwill and reputation amongst the consuming public.
- In March, 2017, Foodcraft learnt about the activities of the defendants who were in the process of launching a food delivery outlet under the mark 'CURRY HAUS'. The defendants who are running a restaurant under the name of 'Masala House' have deceitfully adopted the mark 'CURRY HAUS' for their delivery service to take benefit of the reputation and goodwill which Foodcraft has acquired in the said trademarks in relation to the food delivery business. The cease and desist notice issued to the defendants were not acted upon by them.
Saurabh/defendants made following submissions in support of its case:
- The word 'HAUS' is a non-distinctive part of 'ASIAN HAUS' and 'SUSHI HAUS' and a suit for passing off on the basis of a non-distinctive component, the word 'HAUS' which is otherwise common to the trade is not maintainable.
- The word 'HAUS' has been used by other parties in India including those in Delhi, Gurgaon and other metropolitan cities of India. It is commonly used as suffix or prefix to attribute that the food is from a home or emanating from a house kitchen.
- The words 'HAUS' or 'HOUSE' are phonetically similar, 'HAUS' means 'HOUSE' and the use of the word 'HAUS' in a restaurant business is only indicative that it is homemade food which is being served in the restaurant or provided through its delivery outlets.
The court after considering the pleadings, arguments, case laws and documents made the following observations:
- Admittedly, Foodcraft started its business under the trade name 'ASIAN HAUS' in the year 2012 and 'SUSHI HAUS' in 2015. The write ups relating to healthy eating under these brand names which caters both to Asian cuisine and Japanese cuisine reflect their popularity. It further evidences the reputation which the 'ASIAN HAUS' and 'SUSHI HAUS' have acquired by innovation in relation to home delivery outlets.
- The word 'HAUS' is of German origin which means 'house' and the trade which Foodcraft is carrying on i.e. supply of food through its delivery outlets is not in any manner connected with the meaning of this word. Foodcraft has been using the word 'HAUS' to cater to its food delivery outlets since the year 2012 and escalation of its sale figures are reflective of the popularity of its brand name which was initially one outlet but has now expanded to five under two brand names, i.e., 'ASIAN HAUS' and 'SUSHI HAUS'. Thus, there is no doubt that Foodcraft has acquired a distinctive reputation and goodwill of its own under the said trade names 'ASIAN HAUS' and 'SUSHI HAUS'.
- The defendants act in starting the outlet under the name 'CURRY HAUS' was at their own risk as they were put on notice by Foodcraft. The defendants contention that the word 'HAUS' is a well-known terminology is misconceived. Foodcraft's idea of delivery of food is much prior in time to that of the defendants and the latter's adoption of the word in relation to similar line of business is in bad faith.
- The word 'HAUS' is not generic and a customer who orders online delivery food would be confused with 'CURRY HAUS' and believe it to be an extension of the delivery outlets of 'ASIAN HAUS' and 'SUSHI HAUS'.
- The argument that Foodcraft has not acted against other entities using the word HAUS has no merit as it is the prerogative of the party to decide.
In view of the above the Court restrained the defendants from using the word HAUS in relation to their food delivery business.