Delhi HC restrains sale of Dil Afza on lawsuit by Rooh Afza

New Delhi: The Delhi High Court has restrained the manufacture and sale of sweet beverage concentrate 'Sharbat Dil Afza' during the pendency of a lawsuit for alleged trademark infringement by Hamdard Dawakhana which sells 'Rooh Afza'.

A bench of justices Vibhu Bakhru and Amit Mahajan said that prima facie, 'Rooh Afza' served as the source identifier for Hamdard for over a century and has acquired immense goodwill and it was essential to ensure that the competitors keep a safe distance from the mark.

The court's order came on an appeal by Hamdard (appellant) against a single judge's order refusing to pass an interim order to restrain 'Dil Afza' manufacture Sadar Laboratories (respondent) from allegedly indulging in trademark infringement.

"It is 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," said the court in its order dated December 21.

The court also noted that both the products have the "same deep red colour and texture" and "structure of the bottles is not materially different" and thus opined that the "commercial impression of the impugned trademark is deceptively similar to the appellants' trademark".

The court recorded that before the single judge, a statement has been made on behalf of the respondent that it would not manufacture and sell syrups and beverages under the mark 'DIL AFZA' and thus made it "absolute" till the disposal of the lawsuit.

"The impugned order is set aside. By an ad interim order dated 15.12.2020, the learned single judge had recorded the statement made on behalf of the respondent (defendant) that the respondent would not manufacture and sell syrups and beverages falling under Class 32 under the impugned trademark 'DIL AFZA'. The said ad interim order is made absolute and shall continue till the disposal of the suit. The respondent shall not manufacture and sell any product under Class 32 under the impugned trademark 'DIL AFZA' till the disposal of the suit," ordered the court.

The appellant, represented by lawyers Praveen Anand and Dhruv Anand, argued that the mark 'Rooh Afza' is among the most reputed marks used in relation to sharbats.

They thus sought relief from the court on the ground that the use of 'Dil Afza' for syrups/sharbats was intended to deceive customers and would result in dilution of 'Rooh Afza' trademark.