The parties are operating restaurant under the name 'Pinch of Spice' and 'Pinch of Salt'. Pinch of Spice claimed prior adoption and argued similarity of names at the Delhi High Court. The Court on examining the facts found 'Pinch of Salt' case to be convincing and held marks/names to be different!
Mehar Wing Services Private Limited (Mehar) filed suit for trade mark infringement and passing off to safeguard its rights in the trade mark 'Pinch of Spice' and to restrain the Defendant, Jindal Restaurant (Jindal) from using the mark 'Pinch of Salt' in relation to restaurant business. The court at the admission stage granted an ex-parte interim injunction restraining Jindal from using the mark/name 'Pinch of Salt'. Jindal applied for setting aside the injunction and Mehar for injunction to be confirmed.
Mehar in support of its case argued:
- It operates a fine dining restaurant in Agra with the trade name 'Pinch of Spice' which it started in 2007. Owing to its success Mehar has opened three other outlets.
- "Silver Spoon Food and Beverages" (Silver Spoon) is a partnership firm working on a mutual understanding with Mehar.
- Mehar is the registered proprietor of the mark 'Pinch of Spice' in class 43. They have been using this trade mark/name in a distinctive get up, make up and in an artistic manner and acquired reputation.
- Pinch of Spice has acquired reputation through advertising and the trade name and trademark has web presence through its website www.pinchofspice.in
- Jindal is engaged in the same line of business and started using a deceptively similar mark/name Pinch of Salt in relation to their business in the year 2015. Adoption of a deceptively similar mark/name is not in good faith and amounts to infringement. The cease and desist letter addressed by Mehar was not acted upon by Jindal and was constrained to file the action.
- Mehar wants the interim injunction granted in its favour to be confirmed.
Jindal made following submissions:
- 'Pinch of Spice' and 'Pinch of Salt' have no similarity, the manner of representation, label, trade dress are also different.
- The word 'Pinch' is being used by several other food and beverage chains. It has become generic and common to the trade in relation to food preparations.
- Mehar and Silver Spoon have no connection with each other.
- Mehar is running only one restaurant by the name 'Pinch of Spice' in Agra, they have no other outlet in Delhi and no document to this effect has been placed on record.
- 'Pinch of Salt' has acquired reputation and a restaurant is being run in East Delhi under the said name.
- The averment that 'Pinch of Spice' has three outlets is not correct. It has only one outlet in Agra and none in Delhi. It has also come out that there is no connection between Mehar and Silver Spoon. The documents and invoices filed in this regard have no relevance. Thus, it is clear that Mehar has apparently made wrong statements in the plaint.
- A comparison of the rival marks 'Pinch of Spice' and 'Pinch of Salt' shows that they are distinct and manner of representation, trade dress and label are also different. Moreover, applying the test of a reasonable man of average intelligence there is no chance of confusion with regard to the trade name of the parties.
- The word Pinch is a common generic word and is related to the food and dining industry. Mehar's submission that they have registration for 'Pinch of Spice' and thus entitled to protection is mis-conceived. A trademark which is common to the trade or is otherwise of a non-distinctive character, registration thereof, will not confer any exclusive right in the matter forming only a 'part' of the 'whole' of the trademark so registered.
- The word 'Pinch' has not attained a secondary meaning in respect of goods and services of Mehar. They have not been able to show that it has a reputation and goodwill which has travelled beyond Agra and there is nothing to suggest that the word 'Pinch' is associated only with Mehar. The words 'Pinch of Spice' and 'Pinch of Salt' even otherwise are wholly dis-similar, phonetically and visually.
The court concluded Mehar has failed to establish a prima facie case and balance of convenience is also not in their favour. Thus, set aside the interim injunction granted in favour of Mehar.