M/S Flipkart India Private Limited vs. M/S Marc Enterprises Pvt Ltd

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 10/04/2026

+ FAO-IPD 46/2021, CM APPL. 46817/2018 & CM APPL.
54484/2018

M/S FLIPKART INDIA PRIVATE LIMITED .....Appellant

versus

M/S MARC ENTERPRISES PVT LTD .....Respondent

Advocates who appeared in this case

For the Appellant : Mr. Sandeep Sethi, Senior Advocate,
Mr. Rajshekhar Rao, Senior Advocate
with Mr. Nitin Sharma, Ms. Shilpa
Gupta, Mr. Ranjeet Singh Sidhu, Mr.
Kuber Mahajan, Mr. Naman Tandon,
Mr. Krisna Gambhir and Ms. Shreya
Sethi, Advocates.

For the Respondent : Mr. Ajay Amitabh Suman, Mr.
Shravan Kumar Bansal, Mr. Rishi
Bansal, Ms. Deasha Mehta, Mr.
Aviral Srivastava and Ms. Ayushi
Arora, Advocates.

CORAM:
HON'BLE MR. JUSTICE TEJAS KARIA

JUDGMENT
TEJAS KARIA, J
1. The present Appeal has been filed under Order 43(1)(R) of the Code
of Civil Procedure, 1908 (“ CPC ”) against the order dated 27.10.2018

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(“ Impugned Order ”) read with order dated 30.10.2018 in T.M. No. 12 of
2018 passed by the learned Additional District Judge, Patiala House Courts,
New Delhi (“ Trial Court ”).
FACTUAL BACKGROUND:
2. The Respondent filed the Suit before the learned Trial Court seeking a
permanent injunction against infringement of the Mark ‘MARC’
(“ Respondent’s Mark ”), passing off, dilution, delivery up and rendition of
accounts. The Respondent is in the business of selling and manufacturing
electrical accessories and fittings, electrical equipment, electrical appliances,
electrical apparatus and instruments. The Respondent had obtained
registrations for the Respondent’s Mark, the details of which are as under:

3. The Appellant is an e-commerce platform which hosts the goods of
various companies including that of the Respondent and acts as a third-party
website facilitating sale of goods. The Appellant further manufactures and
sells its own products under various labels and Trade Marks. The Appellant
adopted the Marks ‘MARQ’, and ‘
’ (“ Impugned
Marks ”) for dealing in goods that are allied and cognate to the Respondent’s
goods under the Respondent’s Mark. The Appellant further filed

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Applications for the registration of the Impugned Marks, the details of
which are as under:

4. Vide order dated 18.01.2018, the learned Trial Court granted an ad-
interim injunction against the use of the Impugned Marks by the Appellant.
The Appellant challenged the order dated 18.01.2018, before this Court in
FAO 30/2018. Vide order dated 22.01.2018, passed in FAO 30/2018, this
Court allowed the Appellant an extension until 30.01.2018 to clear its
existing stock of televisions, microwave ovens and washing machines and
accordingly, the order dated 18.01.2018 was modified to the aforesaid
extent. FAO 30/2018 was disposed of vide order dated 01.02.2018 wherein
the extension granted to the Appellant vide order dated 18.01.2018 was
extended till 05.02.2018, and the direction was passed that any further
request for extension shall be made before the learned Trial Court, which
shall be decided by the learned Trial Court on its own merits independent of
the observations of this Court.
5. The Appellant filed an application under Order XXXIX Rule 4 of the
CPC for vacation of the ad-interim injunction order dated 18.01.2018.

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Thereafter, by way of the Impugned Order, the Trial Court allowed the
Respondent’s application under Order XXXIX Rules 1 and 2 of the CPC and
consequently dismissed the Appellant’s application under Order XXXIX
Rule 4 of the CPC.
6. Aggrieved by the Impugned Order, the Appellant has filed the present
Appeal. Vide Order dated 12.11.2018, the operation of the Impugned Order
was stayed. After completion of final arguments on behalf of the Parties, the
Judgment in the Appeal was reserved on 24.12.2025. Thereafter, the
Appellant filed C.M. No. 46/2026 under Order XLI Rule 27 read with
Section 151 of the CPC seeking to place additional documents on record.
The Application to bring the additional documents on record was allowed,
subject to payment of costs of ₹2,00,000 by the Appellant to the Respondent
within a period of four weeks.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
7. The learned Senior Counsel for the Appellant made the following
submissions:
7.1. The Appellant is in a business-to-business entity engaged in the
business of wholesale cash and carry. In the month of July 2017, the
Appellant decided to manufacture and sell large appliances like TVs,
ACs, Washing Machines, Microwave Ovens, etc. The Appellant
honestly adopted the Impugned Marks and represented them in a
unique and distinctive manner in the month of July 2017. The
Impugned Marks signify quality products / large appliances, which
are made available to Indian consumers at affordable prices. To
effectively represent its brand philosophy ‘mark of quality’, the

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Appellant conceived the Impugned Marks, wherein the first three
alphabets of the term ‘mark’ have been combined with ‘Q’ which
signifies quality.
7.2. In all promotional materials the Impugned Marks have been
represented all along with the House Mark ‘FLIPKART’, it has been
held by the Supreme Court of the United States of America in Arcona
Inc. v. Farmacy Beauty LLC , No. 20-1429, that the prominent use of
house mark along with a mark significantly reduces, if not eliminate
altogether the possibility of confusion. Further, articles published by
third parties have also represented the Impugned Marks with the
capital letter ‘Q’, i.e. the unique manner of depiction of the Impugned
Marks and communicated to the public that the products
manufactured and sold under the Impugned Marks emanate from the
Appellant. Due to extensive online and social media marketing
campaign of the Appellant’s large appliances under the Impugned
Marks, consumers, people in trade circles and the public at large
associates large appliances under the Impugned Marks with the
Appellant, further, they pronounce the Impugned Marks as ‘Mar
Queue’; and associate the capital letter ‘Q’ in the Impugned Marks
with ‘Quality made affordable’ and / or ‘Quality products at
affordable prices’.
7.3. The Appellant has widely publicized the Impugned Marks through
extensive online and social media marketing campaigns. There are
independent / third parties’ online articles published by prominent
publishers / newspapers and websites, further, the launch of the

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Appellant’s products including microwave ovens, television sets and
washing machines under the Impugned Marks were published through
online articles.
7.4. The Appellant has launched its microwave ovens and television sets in
the month of October 2017 and washing machines in the month of
November 2017 under the Impugned Marks. Since the date of launch,
the Appellant has been continuously selling microwave ovens,
televisions, washing machines under the Impugned Marks through the
website www.flipkart.com (“ Appellant’s Platform ”). The Appellant,
since the date of launch, had sold 8,542 units of about Gross
Merchandise Value of ₹6,91,00,000 under the Impugned Marks until
11.01.2018. The Appellant sells around hundred units of inventory
under the Impugned Mark every day.
7.5. The Impugned Marks are structurally, phonetically, visually and
conceptually dissimilar and distinct from the Respondent’s Mark and
the use of the Impugned Marks by the Appellant could not be
associated with the Respondent. The Appellant sells its products under
the Impugned Marks online exclusively through the Appellant’s
Platform and the online users will not get confused with the use of the
Impugned Marks to believe that the same emanates from the
Respondent. In Esge AG v. Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM), EC No. 207/2009 , the
General Court (Seventh Chamber) held that if the goods sold under
the competing marks are sold primarily in self-service stores, then as a
rule visual similarity between the competing marks will be more

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important. Moreover, the Respondent does not manufacture and sell
microwave ovens, washing machines and televisions. The Respondent
manufactures and sells completely different products, i.e., water
heaters, geysers, fans, air coolers, irons and hot plates only. Even if
the Respondent wants to enter the market of the Appellant, then the
Appellant will have a better right as the Appellant entered the relevant
market prior to the Respondent as has been held in Peshawar Soap
and Chemicals Ltd. v. Godrej Soaps Ltd. , 2001 (21) PTC 1 (Del).
The Respondent’s Mark is not distinctive, and the public at large does
not associate the Respondent’s Mark with the Respondent. A
representation of the Impugned Marks and the Respondent’s Mark is
as under:

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7.6. The Respondent cannot claim exclusive monopoly over the word /
expression ‘Marc’, ‘Mark’, or ‘Mar’. It is a matter of public record
that the alphabets or words ‘Marc’, ‘Mark’, or ‘Mar’ are extensively
used by various third parties either as Trade Name, Trade Mark,
Brand Name or Corporate Name. Search results obtained from the
Trade Marks Registry website itself indicate the existence of valid and
subsisting registrations incorporating the word ‘Marc’, ‘Mark’, or
‘Mar’.
7.7. Further, information obtained from Ministry of Corporate Affairs
regarding incorporated companies in India also demonstrates that
there is extensive use of the word ‘Marc’, ‘Mark’, or ‘Mar’, as part of
Trade Mark, Trade Name, trading style, etc. In view of such extensive
usage of the words ‘Marc’, ‘Mark’, or ‘Mar’ no individual or entity
can claim exclusive rights to the use of word / expression ‘Mar’. A
perusal of the Trade Marks Registry yields the following results:

7.8. The learned Trial Court gravely erred in passing the Impugned Order
restraining the Appellant from using the Impugned Mark and
observing that the judgment would be supplied to the Appellant on or

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before November 2018. There was no urgency in the matter to first
restrain the Appellant from using the Impugned Mark and then pass
reasons for granting such injunction.
7.9. The Impugned Order was passed in violation of the principles of
natural justice. There was no rationale for initially restraining the
Appellant and providing reasons only on or before November 2018.
There was no urgency justifying the issuance of an injunction order
without providing reasons, particularly given that the relevant
applications were pending before the Trial Court for approximately
ten months, during which the Trial Court permitted the Appellant to
sell products under the Impugned Marks after considering the balance
of convenience. The Impugned Order does not specify the grounds for
urgency nor clarify why both the injunction, and its supporting
reasons could not have been issued simultaneously.
7.10. The Impugned Order is contrary to the judgments of the Supreme
Court, that the court has to exercise caution as opposed to acting in
haste while considering passing an order on an application seeking
injunction. The learned Trial Court erred in passing the Impugned
Order without stating any reasons as to how the Respondent has made
out a case for granting injunction, particularly, when there are no
reasons / arguments with respect to three basic ingredients of interim
injunction, i.e., prima facie case, irreparable injury and balance of
convenience.
7.11. The claim of the Respondent that the Respondent has conceived,
coined and created the mark the Respondent’s Mark is ex facie false.

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There are third-party registrations which exist on the record of
Registrar of Trade Marks in Classes 9 and 11 for the Trade Mark
‘MARC’ being registered in the name of parties prior and subsequent
to the alleged date of adoption of the Respondent’s Mark. The learned
Trial Court has held that the Respondent’s Mark and the Impugned
Marks are not visually identical. However, without considering that
the Appellant is selling its products online and consumer would search
for ‘marQ’ for purchasing, and further relying on the extraneous
material, the learned Trial Court held that the Impugned Marks are
phonetically identical to the Respondent’s Mark.
7.12. The learned Trial Court had done independent Internet search to
ascertain the pronunciation of the Impugned Marks completely
ignoring as to how the Impugned Marks are pronounced by the
Appellant in the advertisement. In Bright Enterprises Private Limited
& Anr. v. MJ Bizcraft LLP , RFA(OS) Comm No. 8 of 2016,
judgment dated 04.01.2017, this Court held that the judge could not
himself become a witness in a case before him and that too without
any opportunity of rebuttal or cross examination. The learned Trial
Court applied different yardsticks for considering pronunciation of the
Respondent’s Mark and the Impugned Marks. Since there is no space
between letter ‘r’ and ‘Q’ in the Impugned Marks, the letter Q cannot
be pronounced separately as ‘queue’ and ignoring the significance of
the capital letter ‘Q’. However, the Respondent’s Mark, ‘MARC’
would be pronounced as ‘MARC’.

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7.13. It has been held in various cases before the Supreme Court and this
Court including in the judgments of F. Hoffmann-la Roche &Co. Ltd.
vs. Geoffrey Manner &Co. Pvt. Ltd. , (1969) 2 SCC 716, Nandhini
Deluxe v. M/s Karnataka Cooperative Milk Producers Federation
Ltd. , CA Nos. 2937-2943 of 2018, Skyline Eduction Instituted Pvt.
Ltd. v. S.L. Vaswani , (2010) 2 SCC 142, Ranbaxy Laboratories v.
Indchemie Health Specialities , (2002) 24 PTC 510 and Aviat
Chemicals Pvt. Ltd. & Anr. v. Intas Pharmaceuticals Ltd. , 2001 (21)
PTC 601 (Del), held that the test of phonetic similarity is not
sufficient to determine the infringing nature of the impugned marks.
7.14. In a case of infringement of Trade Mark where the two competing
Marks are similar, the Respondent will have to prove that there is
likelihood of deception and / or confusion amongst the members of
public on account of use of a similar Trade Mark by the Appellant as
has been held by the Supreme Court in the case of Ruston & Hornsby
Ltd. v. The Zamindara Engineering Qq. , 1969 (2) SCC 727. Thus, in
order to succeed, the Respondent must establish that the use of the
Impugned Marks by the Appellant in relation to its large appliances is
likely to lead to deception and / or confusion amongst the members of
the consuming public.
7.15. Applying the test as laid down by the Supreme Court in Cadilla
Healthcare Limited v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC
73, no case for likelihood of deception or confusion is made out as the
Appellant is not manufacturing goods and products manufactured by
the Respondent. The Supreme Court, in the case of Vishudas Trading

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As Vishnudas Kishendus v. Vazir Sultan Tobacco Co. Ltd. , 1996
PTC (16) 512, held that a trader or manufacturer who actually trades
or manufactures only one or some of the articles coming under a
broad classification cannot be permitted to enjoy monopoly in respect
of all the articles which may come under such broad classification and
by that process preclude other traders or manufacturers from getting
registration in respect of other goods.
7.16. In the case of Dura Roof v. Dyna Roof , 2017 (5) GLT 299, it was
held that the nature of goods and the class of buyers who are likely to
purchase the goods, their intelligence and education are important
factors to be taken note of while considering the likelihood of
confusion. Further, third party users are critical in determination
whether there is likelihood of confusion and / or deception as has been
held in Corn Products Refining Co. v. Shangrila Food Products
Ltd. , AIR 1960 SC 142, Rajesh Jain v. Amit Jain , 2014 (60) PTC 526
(Del), Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani and
Anr. , (2010) 2 SCC 142.
7.17. In view of the above, the Impugned Order is arbitrary and perverse
and deserves to be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
8. The learned Counsel for the Respondent made the following
submissions:
8.1. The Respondent’s Mark and the Impugned Marks are identical and
deceptively similar not only through eye and ear but also in idea.
Argument of the Appellant that the Impugned Marks are pronounced

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as ‘Mar Queue’, is of no help as consumers pronounce the
Respondent’s Mark and the Impugned Marks in the same manner.
Hence there is every possibility of confusion. Pronunciation of
English words may not be the same for semi-literate population as has
been held in Cadbury India Ltd. v. Neeraj Food Products , ILR
(2007) II Delhi 1065. The similarity of the competing Marks and the
likelihood of confusion is the test to determine infringement of Trade
Mark as has been held in Cadila Health Care (supra). Further, the
question of confusion and deception has to be looked from the view of
a man of average intelligence and imperfect recollection as has been
held in Amritdhara Pharmacy v. Satya Deo Gupta , AIR 1963 SC
449.
8.2. The Respondent is engaged in the business of manufacturing and
marketing of electrical accessories, fittings, electrical equipment,
domestic electronic appliances, electronic apparatus, and instruments
etc and the Appellant is engaged in the business of manufacturing and
marketing of televisions, air conditioners and washing machines,
allegedly since the year 2017. The products involved of the parties in
question are identical or similar viz. electrical appliances and that the
same are sold through common trade channels. The class of customers
and purchasers involved is also same.
8.3. The documents filed by the Appellant in support of user of the
Impugned Marks show that the same were launched in the month of
October 2017. The Respondent is the prior adopter and continuous
user of the Respondent’s Mark since the year 1981. The Respondent is

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the prior registered proprietor of the Respondent’s Mark in Classes
07, 09 and 11 since the year 16.04.1984. The Respondent has put on
record the documents by way of bills and vouchers showing user of
the Respondent’s Mark at least since the year 1982. While the
Appellant is alleged to have adopted the Impugned Marks in the year
2017.
8.4. All the Trade Mark registrations of the Respondent for the
Respondent’s Mark are legal, valid and subsisting. The Impugned
Marks are identical with the Respondent’s Mark and all of the
Appellant’s products are covered under the registrations for the
Respondent’s Mark. The Supreme Court in M/s Kaviraj Pandit Durga
Dutt Sharma v. M/s Navratna Pharmaceuticals , AIR 1965 SC 980,
held that in case of trade mark infringement if the plaintiff is able to
establish similarity between the marks, then no more evidence is
required.
8.5. The argument of the Appellant is that the possibility of confusion is
diminished as the Appellant is selling its goods through internet
exclusively, is misconceived as the products of the Respondent are
also sold through internet that too on the website of the Appellant. The
Respondent’s products are also available and sold through India Mart.
The Trial Court rightly observed that even if products of the Appellant
are sold through the internet, this would not negate the chances of
confusion. It has been held in Exotic Mile v. Imagine Marketing (P)
Ltd., 2025 SCC OnLine Del 5969, that even when the goods are sold

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exclusively on the internet, phonetic similarity of the competing
marks will still be relevant to a certain extent.
8.6. The use of the house mark of the Appellant along with the Impugned
Mark does not negate confusion as has been held in Renaissance
Hotel Holdings Inc. v. B. Vijaya Sai , 2022 SCC OnLine SC 61 and
Marico Limited v. Minolta Natural Care , Neutral Citation:
2025:BHC-OS: 24054. In Cotton Corporation of India Limited v.
United Industrial Bank Limited and Ors. , (1983) 4 SCC 625, it has
been held that English judgments shall not be relied upon blindly but
rather be relied upon only after keeping Indian legislation and Indian
conditions in mind.
8.7. The Appellant is the dishonest adopter, fraudulent user of the
Impugned Marks. The Trade Mark Applications for registration of the
Impugned Marks were filed by the Appellant on 11.07.2017 as
proposed to be used. Even as per the Appellant’s documents, they
have launched Impugned Marks in October 2017. Admittedly, the
Respondent is the prior user and prior registered proprietor of the
Respondent’s Mark. The Appellant was aware of the Respondent’s
Mark at the time of adoption of Impugned Marks in the year 2017.
Products of the Respondent are also sold through the website of the
Appellant. The Respondent’s Mark under Application No. 911681 was
cited by the Registrar of Trade Marks in the Examination Report
dated 09.08.2017 issued to the Trade Mark Application of the
Appellant under Application No. 3590086. The Appellant has failed to
discharge its onus of being an honest adopter of the Impugned Marks.

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Therefore, the Appellant is not entitled for any type of relief from this
Court.
8.8. The Appellant itself has applied for the registration of the Impugned
Marks in relation to electrical appliances. When the Appellant itself
has applied for the registration of the Impugned Marks before the
Trade Marks Registry claiming rights in the Impugned Marks the
Appellant is estopped from claiming that the Respondent’s Mark is
common to trade as has been held in the judgments of The Indian
Hotels Company Ltd v. Jiva Institute of Vedic Science and Culture ,
2008 (37) PTC 468 (Del) and Automatic Electric Limited v.
R.K.Dhawan , 57 (1995) DLT 49. The Appellant has put on record the
search report from the Trade Mark Registry in order to allege the
Respondent’s Mark to be common to trade. Merely filing of the search
report, does not prove or does not in any way establish actual,
substantial user constituting common to the trade. Further, common to
the register is not the same as common to the trade as has been held in
Walter Bushnell Pvt Ltd. v. Miracle Life Sciences , 2014 (59) PTC
229 (Del), Pankaj Goel v. Dabur India , 2008 (38) PTC 49 (Del) DB,
National Bell Company v. Metal Goods , AIR 1971 SC 898, Century
Traders v. Roshan Lai Duggar , AIR 1978 Delhi 250 and Cadila
Pharmaceutical v. Sami Khabib , 2011 (47) PTC 69 Bom.
8.9. The Appellant has failed to point out any perversity in the Impugned
Order. The Impugned Order is a well-reasoned order which has been
passed after taking into consideration the facts of the case and law
applicable thereto in right perspective. It is a well settled proposition

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of law that in appellate jurisdiction the scope of interference by the
Appellate Court is only limited to the extent of perversity. The
Supreme Court in Wander Ltd. v. Antox India Pvt. Ltd. , 1991 PTC
1(SC), Mohd. Mehtab Khan and others v. Khushnuma Ibrahim
Khan and others , (2013) 9 SCC 221, has held that appellate court will
not interfere with the decision of the trial court until and unless there
is apparent perversity.
8.10. In view of the aforesaid, there is no infirmity with the Impugned
Order and the present Appeal deserves to be dismissed.

ANALYSIS AND FINDINGS:
9. The present Appeal has been filed against the Impugned Order passed
by the learned Trial Court in exercise of its discretionary jurisdiction under
Order XXXIX Rules 1 and 2 of the CPC.
10. The powers of the Appellate Court are confined to evaluating whether
the interim injunction was granted in accordance with established legal
principles applicable to the facts of the case. Where the law has been
correctly applied and the discretion exercised is free from any perversity, the
Appellate Court is not warranted to interfere, as affirmed by the Supreme
Court in Wander Ltd. (supra) and Mohd. Mehtab (supra). The Appellate
Court cannot substitute its own judgment for that of the trial court merely
because it may consider an alternative view more appropriate or desirable.
Intervention is permissible solely when the trial court’s decision is clearly
perverse and constitutes a conclusion no reasonable person, taking into
account the relevant facts and legal standards, could have reached.
Consequently, the central question for determination is whether the

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Impugned Order issued by the learned Trial Court is fundamentally perverse
and legally indefensible.
11. The Respondent is involved in the business of selling and
manufacturing electrical accessories and fittings, electrical equipment,
electrical appliances, electrical apparatus and instruments under the Mark
‘MARC’ and has the following registrations with respect to the
Respondent’s Mark:

12. The Respondent is admittedly the prior user of the Respondent’s Mark
with user claim of 1981 and the first registration obtained for the
Respondent’s Mark in 1984. The Appellant admittedly adopted the
Impugned Marks in 2017 for large electronic items such as televisions, air
conditioners and microwaves, which is after the use of the Respondent’s
Mark for allied goods. The Respondent has also established that the
Respondent’s Mark is a uniquely coined term and that it is inherently
distinctive. The goods that the Respondent is dealing in are covered by the
registrations of the Respondent’s Mark.
13. The Respondent’s Mark and the Impugned Marks are nearly identical
and deceptively similar. An average consumer of average intelligence and
imperfect recollection is likely to get confused between the competing

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Marks. The competing Marks are phonetically and structurally similar which
is likely to cause confusion. In view of the phonetic and structural similarity
between the competing Marks, the judgments in F. Hoffmann-la Roche
(supra), Nandhini Deluxe (supra), Skyline Eduction (supra), Ranbaxy
Laboratories (supra) and Aviat Chemicals (supra) do not further the case of
the Appellant. The Respondent having proved that there is a likelihood of
confusion between the Respondent’s Mark and the Impugned Marks the
judgments in Ruston & Hornsby (supra) and Cadila Healthcare (supra) do
not help the case of the Appellant.
14. The Marks ‘MARC’ and ‘MARQ’ are phonetically as well as visually
similar. Where the distinctive elements of a registered trade mark consist of
or include words, the trade mark may be infringed by the phonetic similarity
of those words as well as by their visual representation. As such, the use of
the word ‘MARQ’ which is phonetically, structurally and visually similar to
‘MARC’, would also be an act of infringement. Even though the Appellant’s
goods are sold exclusively through the Appellant’s Platform, which is an e-
commerce platform, nonetheless, phonetic similarity between the two
competing Marks will still hold relevance as has been held by this Court in
the judgment of Exotic Mile (supra).
15. As per the anti-dissection rule, if the Respondent’s Mark and the
Impugned Marks are compared as a whole, they are deceptively similar and
likely to cause confusion in the minds of the consumers with average
intelligence and imperfect recollection. Mere addition of the House-Mark of
the Appellant before the Impugned Marks does not eliminate the likelihood
of confusion as has been held in the judgments of Renaissance Holdings

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(supra) and Marico Limited (supra). The Appellant is required to prove that
the added material is sufficient to distinguish the goods of the Appellant
from that of the Respondent which is not demonstrated in the present case.
An average consumer with imperfect recollection is likely to look at the
product as a whole and would not be able to discern the minor differences in
the rival Marks. The use of the House Mark ‘Flipkart’ along with the
Impugned Marks is insufficient to distinguish the rival products when
considered in the scheme of overall similarities of the rival Marks. The fonts
and way of use the House Mark ‘Flipkart’ next to the Impugned Marks is
miniscule. In some instances, the House Mark is not even used with the
Impugned Mark. Therefore, the Appellant’s reliance on use of House Mark
‘Flipkart’ in conjunction with the Impugned Marks is not helpful to the
Appellant.
16. Further, common to register does not prove common to trade. Various
marks containing the word ‘Marc’, ‘Mark’, or ‘Mar’ have been applied for
or are pending before the Trade Marks Registry does not prove that they are
in use as has been held in the judgments of The Indian Hotels (supra) and
Automatic Electric . Further, plea of common use shall fail unless substantial
usage by other persons is proven as has been held in Walter Bushnell
(supra), Pankaj Goel (supra), National Bell (supra), Century Traders
(supra) and Cadila Pharmaceutical (supra).
17. Trade Mark law aims to prevent consumer confusion about the origin
or endorsement of goods and services. When evaluating the likelihood of
confusion between Trade Marks, it is important to recognize that consumers
typically focus on the overall impression or distinctive features of a mark,

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rather than recalling its details with precision. Therefore, similarity between
Trade Marks must be considered within the context of their market usage.
Additionally, whether the goods or services associated with the competing
Marks are identical or similar should be considered. In the present case, the
Respondent’s products are offered on the Appellant’s platform, while the
Appellant’s products are sold exclusively through the same platform,
indicating that both sets of goods are distributed through identical trade
channels. Electronics and electronic items are accessible to all customer
segments, and it cannot be claimed that internet and e-commerce purchases
are restricted to a particular group. Therefore, the decision in Dura Roof
(supra) does not support the Appellant’s position. Consequently, the goods
sold under the respective Marks are not only allied and cognate but also
share common trade channels and an overlapping class of customers.
18. After the judgment in the present Appeal was reserved, the Appellant
filed CM 46/2026 seeking to place additional documents on record depicting
the Trade Mark Applications to show that the Appellant has obtained
registration of the Mark, “ Flipkart MarQ” and “ MarQ by Flipkart” and,
therefore, there is no infringement of the Respondent’s Mark. It was further
submitted by the Appellant that
the registration of the trademark “Flipkart
MarQ” and “MarQ by Flipkart” constitutes a supervening statutory event,
which directly impacts the maintainability of the infringement claim, the
legality and sustainability of any injunctive relief sought or granted against
the Appellant and the balance of convenience and equities between the
Parties.

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19. The details of the Trade Mark Applications filed by the Appellant
along with the status are as under:

“Flipkart MarQ” in Class 7 and “MarQ by Flipkart” in Class 42 after the
issuance of the Impugned Order. Consequently, at the time the Impugned
Order was passed, no registration existed in favour of the Appellant. Class
42 registration does not pertain to the products in question in the present
matter. Regarding the Class 7 registration, only one electrical appliance,
‘Washing Machine’ is relevant to the facts of this case. The Mark “Flipkart
MarQ” in Class 7 comprises two words: ‘Flipkart,’ the Appellant’s house
mark, and ‘MarQ,’ for which separate registration has been sought by the
Appellant, but not yet granted. Therefore, the Appellant cannot rely on the
later registration of “Flipkart MarQ” at this stage by merely submitting an
application to produce documents, without amending any grounds in the
Appeal, despite having been aware of the registration since 28.02.2020.

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21. Furthermore, the Impugned Order has found deceptive similarity
between the Respondent’s Mark and the Impugned Marks after a holistic
comparison. As a result, the Appellant was restrained from using the
Impugned Mark on its products, also based on grounds of passing off due to
the prior use, goodwill, and reputation associated with the Respondent’s
Mark. Accordingly, the subsequent registration of the Mark, “Flipkart
MarQ” in Class 7 does not have any impact on this Appeal or constitute a
barrier to sustain the injunction granted against the Appellant by way of the
Impugned Order.
22. At this prima facie stage and considering the settled law laid down in
Wander Ltd. (supra) and Mohd. Mehtab Khan (supra), there is no
justification for diverging from the conclusions reached by the learned Trial
Court in the Impugned Order. The Impugned Order exhibits no manifest
error, nor does the Trial Court’s evaluation of the facts and legal principles
present any irregularity. Accordingly, in exercise of appellate jurisdiction, it
is not expedient to re-examine the sufficiency of evidence considered by the
learned Trial Court. Accordingly, the Appellant has failed to show any
arbitrariness or perversity with the Impugned Order and, accordingly, the
Appeal is without any merit.
CONCLUSION
23. For the aforesaid reasons, no interference is warranted in the
Impugned Order dated 27.10.2018 and, accordingly, the Appeal along with
the pending Applications are dismissed.
24. The stay of operation of Impugned Order granted vide Order dated
12.11.2018 is vacated. It is, however, made clear that the observations made

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hereinabove are only prima facie in nature only for the purpose of deciding
the present Appeal.
25. There shall be no order as to costs.

TEJAS KARIA, J
APRIL 10, 2026
‘AK’

26. At this stage, after the pronouncement of the above Judgement, the
learned Senior Counsel for the Appellant submitted that the Appellant may
be granted a reasonable time to exhaust or withdraw the products using the
Impugned Marks available in market to fully comply with the interim
injunction.
27. The learned Counsel for the Respondent submitted that the
Respondent would not have any objection to the said request provided it is
only limited to granting extension of time to comply with the interim
injunction.
28. Considering the above request and that the operation of the Impugned
Order was stayed during the pendency of the present Appeal, the Appellant
is granted time till 15.05.2026 to comply with the interim injunction granted
vide Impugned Order.

TEJAS KARIA, J
APRIL 10, 2026
‘AK’


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SHARMA
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