Phonetic similarity between trademarks for allied goods warrants injunction despite exclusive online sales and house mark usage.

The Respondent, a manufacturer of electrical accessories and appliances, is the registered proprietor of the trademark ‘MARC’, used since 1981 with registrations dating back to 1984

The Appellant, an e-commerce platform, adopted the marks ‘MARQ’ and ‘MarQ’ in July 2017 for large appliances like televisions and microwave ovens

The Respondent filed a suit for permanent injunction alleging infringement and passing off.

On 27.10.2018, the Trial Court granted an interim injunction in favor of the Respondent

The Appellant challenged this order, contending that the marks were visually distinct, the products were different, and the use of the house mark ‘FLIPKART’ eliminated confusion

During the pendency of the appeal, the Appellant obtained registrations for ‘Flipkart MarQ’ in Class 7 and Class 42

1. Whether the marks ‘MARC’ and ‘MARQ’ are deceptively similar, causing a likelihood of confusion among consumers.

2. Whether the Appellant’s use of its house mark ‘FLIPKART’ in conjunction with the impugned mark is sufficient to distinguish its goods from those of the Respondent.

3. Whether the subsequent registration of the mark ‘Flipkart MarQ’ by the Appellant during the appeal constitutes a supervening event that necessitates vacating the injunction.

4. Whether the Trial Court’s exercise of discretionary jurisdiction under Order XXXIX Rules 1 and 2 of the CPC was perverse or arbitrary.

The court applied the principles of interim injunction under Order XXXIX Rules 1 and 2 of the CPC

Regarding appellate interference, it relied on Wander Ltd. v. Antox India Pvt. Ltd., establishing that an appellate court should not substitute its discretion for the trial court's unless the order is perverse

For trademark infringement, the court applied the "man of average intelligence and imperfect recollection" test from Amritdhara Pharmacy v. Satya Deo Gupta and the likelihood of confusion test from Cadila Healthcare Limited v. Cadila Pharmaceuticals Ltd.

The "anti-dissection rule" was applied to determine similarity

The principle that "common to register" does not equal "common to trade" was derived from The Indian Hotels Company Ltd v. Jiva Institute

The Court found the Respondent to be the prior user of the inherently distinctive mark ‘MARC’ since 1981

It determined that ‘MARC’ and ‘MARQ’ are phonetically, visually, and structurally similar, satisfying the criteria for infringement regardless of the Appellant’s exclusive online sales, as both parties utilize the same trade channels (the Appellant's own platform)

The Court rejected the Appellant's "house mark" defense, noting that ‘MarQ’ remained the prominent feature and the addition of ‘Flipkart’ was often miniscule or absent, thus failing to eliminate the likelihood of confusion

Regarding the Appellant's search reports of similar marks, the Court held that mere presence on the register does not prove actual use in the market

Finally, the Court ruled that the Appellant’s subsequent registration of ‘Flipkart MarQ’ in Class 7 did not protect it against the prior use and reputation established by the Respondent, especially in a claim for passing off

The Appeal was dismissed, and the interim injunction against the Appellant was upheld

The stay on the operation of the Trial Court’s order was vacated

However, recognizing the commercial impact, the Court granted the Appellant an extension until 15.05.2026 to exhaust or withdraw existing stock bearing the impugned marks