Seems like frogs are now battling out in IP law!
Just kidding! Before you panic, let me tell you that this is the latest case to come up in trademark infringement and involves the debate surrounding the name ‘Blue Frog’.
To put things in perspective, the plaintiffs in this case i.e. Frog Company Pvt Ltd own a renowned restaurant called Blue Frog which is based in Mumbai. They filed a trademark infringement suit against a not-so-popular restaurant in Belgaum called Blu Frog Kitchen and Lounge. The primary contention of Blue Frog was that mere deletion of the letter ‘e’ does not make the defendants’ trademark distinguishable from that of the plaintiffs.
Deciding in favor of the plaintiffs, the Bombay High Court passed an interim order directing the defendants to cease their business under the name ‘Blu Frog’.
Justice Patel, who delivered the judgment, stated that the act of the defendant has caused a blow to the reputation and goodwill of the plaintiff’s restaurant. He further held that since the mark of the defendant is phonetically, structurally and visually indistinguishable from that of the plaintiff, the defendant should be permitted to piggyback the Plaintiff’s success by this illicit use of, what is for all intent and purposes, the Plaintiff’s mark.
At this juncture, it is essential to draw one’s attention to the Test of Similarity laid down through various judicial pronouncements. In Mumtaz Ahmed v. Pakeeza Chemicals (AIR 2003 All 114), it was held that the broad and essential features of the two opposing marks are to be considered. Reinforcing the same idea, in BDH Industries v. Croydon Chemical Works Pvt. Ltd (AIR 2002 Bom 361), it was held that apart from the structural, visual and phonetic similarity or dissimilarity, the question has to be considered from the point of view of a man of average intelligence and imperfect collection. Secondly, it has to be considered as a whole and thirdly it is the question of impression.
Stressing on the point that it has to be ‘considered as a whole’, the mark of the plaintiff comprises of only ‘Blue Frog’ whereas the defendant’s mark is ‘Blu Frog Kitchen and Lounge. At what are these two marks so deceptively similar that they cannot be distinguished from one another is what that needs to be answered.
Until then, the final hearing of the case has been slated for July 25 2016.