Allied Blenders And Distillers Limited Vs Boutique Spirit Brands Private Limited

Phonetic similarity between two marks can constitute trademark infringement, even if the marks have minor visual differences.

Introduction:

The case involves a trademark rectification dispute between Allied Blenders And Distillers Limited and Boutique Spirit Brands Private Limited over the trademarks "KYRON" and "BSB MYRON" in relation to alcoholic beverages. The petitioner sought cancellation of the respondent’s registered trademarks on the grounds of deceptive similarity and dishonest adoption. The court had previously granted an interim injunction restraining the respondent from using the mark "MYRON", which was later made absolute.

Detailed Factual Background:

The petitioner, Allied Blenders And Distillers Limited, is a well-known manufacturer of Indian Made Foreign Liquor (IMFL), selling beverages under various trademarks, including "KYRON", since 2012. The "KYRON" mark was registered under Classes 9, 32, and 33, signifying its distinctiveness in the alcoholic beverages industry. The respondent, Boutique Spirit Brands Private Limited, applied for registration of the trademark "BSB MYRON" on a proposed-to-be-used basis in 2020 under Classes 32 and 33.

The petitioner alleged that the respondent's mark "BSB MYRON" was deceptively similar to "KYRON" both phonetically and visually. The petitioner claimed that the respondent deliberately emphasized the word "MYRON" while rendering the prefix "BSB" inconspicuous to cause confusion among consumers.

Detailed Procedural Background:

The petitioner filed a suit bearing CS (COMM) 395/2023 for trademark infringement and passing off before the Delhi High Court. An interim injunction was granted on 1 June 2023, restraining the respondent from using the marks "MYRON" or "BSB MYRON" for IMFL products. The injunction was later made absolute on 18 December 2023. The petitioner subsequently filed rectification petitions seeking cancellation of the respondent's trademark registrations under Section 57 of the Trade Marks Act, 1999.Despite service of notice by publication and email, the respondent failed to appear before the court, resulting in the closure of its right to file a reply on 1 March 2024. The court proceeded to hear the matter ex parte.

Issues Involved in the Case:

Whether the respondent's trademark "BSB MYRON" is deceptively similar to the petitioner's trademark "KYRON" and liable to be cancelled under Section 57 of the Trade Marks Act, 1999.

Petitioner submitted that:The mark "KYRON" has been in continuous use since 2012 and has gained substantial goodwill in India and abroad.The respondent’s mark "BSB MYRON" is deceptively similar to "KYRON", both visually and phonetically, and is likely to cause confusion among consumers.The respondent's dishonest intention was evident from its use of "MYRON" in large font size while rendering "BSB" in smaller and less prominent letters.The petitioner’s products under the "KYRON" brand had received international awards, including the Superior Taste Award 2021 and the Monde Selection Award 2022, further establishing their reputation.

Detailed Discussion on Judgments Cited by Parties:

The court relied on several judgments regarding phonetic similarity and deceptive similarity:K.R. Chinna Krishna Chettiar vs Sri Ambal & Co., (1969) 2 SCC 131 – Holding that resemblance between marks must be considered with reference to both the eye and the ear.Ruston v. Zamindara Engineering Co., (1970) 2 SCC 134 – Holding that phonetic similarity between two marks may lead to likelihood of confusion.Heifer Project International vs Heifer Project India Trust, 2024 SCC OnLine Del 2847 – Holding that marks operating in the same business segment with nearly identical phonetic characteristics are likely to cause deception.Kia Wang vs Registrar of Trademarks, 2023 SCC OnLine Del 5844 – Recognizing the superior rights of a prior user over a subsequent registrant.

Detailed Reasoning and Analysis of Judge:

The court found that the essential feature of the respondent's mark was "MYRON", which was deceptively similar to the petitioner’s mark "KYRON" both phonetically and visually. The manner in which the respondent displayed "MYRON" prominently while downplaying "BSB" indicated a dishonest intention to cause confusion.

The court observed that the petitioner was the prior user of the mark since 2012, while the respondent's applications were filed only in 2020 on a proposed-to-be-used basis. The respondent failed to place any evidence of actual use on record, reinforcing the petitioner’s claim of dishonest adoption.

The court held that the respondent's mark was likely to deceive consumers, especially considering that both parties operated in the same industry and targeted the same customer base.

Final Decision:

The court directed the Registrar of Trade Marks to cancel the respondent's trademark registrations numbered 4544212 (Class 32) and 4544211 (Class 33) and rectify the Trade Marks Register accordingly. The petitioner's request for costs was waived.

Law Settled in This Case:

A trademark that is deceptively similar to a prior registered mark is liable to be cancelled under Section 57 of the Trade Marks Act, 1999.The phonetic similarity between two marks can constitute trademark infringement, even if the marks have minor visual differences.The prior user rule confers superior rights over a subsequent registrant, regardless of the latter’s registration status.The manner of use of a trademark, including highlighting certain components over others, can indicate dishonest intention.Failure to place evidence of actual commercial use on record weakens the case of a subsequent registrant.

Case Title: Allied Blenders And Distillers Limited Vs Boutique Spirit Brands Private Limited

Date of Order: 22 February 2025

Case No.: C.O. (COMM.IPD-TM) 166/2023 & C.O. (COMM.IPD-TM) 167/2023

Name of Court:Delhi High Court

Neutral Citation:2025:DHC:1152

Name of Judge: Hon’ble Ms. Justice Mini Pushkarna

Disclaimer:The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.

Written By: Advocate Ajay Amitabh Suman,IP Adjutor [Patent and Trademark Attorney] ,High Court of Delhi