CS(COMM) 1161/2024 Page 1 of 30

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 12

th

September, 2025

+ CS(COMM) 1161/2024 & I.A. 48983-48984/2024

WOW MOMO FOODS PRIVATE LIMITED .....Plaintiff

Through: Mr. Chander M. Lall, Sr. Adv. with Mr.

Ankur Sangal and Mr. Ankit Arvind,

Advs.

versus

WOW BURGER & ANR. .....Defendants

Through: None.

CORAM:

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

% J U D G M E N T

MANMEET PRITAM SINGH ARORA, J:

I.A. 48983/2024 (Application under Order XXXIX Rules 1 and 2 CPC)

1. The present application has been filed under Order XXXIX Rules 1 and 2

of the Code of Civil Procedure, 1908 [‘CPC’] seeking interim injunction against

the Defendants.

2. The underlying suit has been filed by the Plaintiff inter alia seeking the

relief of permanent injunction against the Defendants from infringing the

Plaintiff’s trademarks by using the mark ‘WOW’/ ‘WOW! BURGER’, passing

off etc.

CS(COMM) 1161/2024 Page 2 of 30

Case Setup by the Plaintiff

3. Mr. Chander M. Lall, learned Senior Counsel appearing on behalf of the

Plaintiff has set up the case of the Plaintiff as under:

3.1. The Plaintiff is a private limited company established in Kolkata. The

Plaintiff through its predecessor, coined and adopted the trade mark ‘WOW!’/

‘WOW! MOMO’ in the year 2008. Since the year 2008 the Plaintiff has been

rendering services in food catering, dine-in, delivery, take away format

restaurants in more than 30 cities with over 600 outlets, with valuation of Rs.

1225 Crores (in 2021).

3.2. The Plaintiff is stated to have revolutionized the food market with its

house mark ‘WOW!’. The mark ‘WOW!’ is stated to form the essential and

significant feature of almost all the trademarks of the Plaintiff. It is stated that

the consumer associates the mark ‘WOW!’ and other formative marks with the

Plaintiff alone.

3.3. The Plaintiff has expanded its operation in various food segments and

some of them are reproduced hereinafter: ‘’, ‘ ’, ‘

’, ‘ ’, ‘ ’, ‘ ’, ‘ ’, ‘ ’, ‘

’, ‘ ’, ‘ ’, ‘ ’, ‘ ’.

3.4. Due to continuous use of the mark ‘WOW! BURGER’ along with other

formative marks of the Plaintiff since 2009, the Plaintiff has garnered substantial

CS(COMM) 1161/2024 Page 3 of 30

goodwill and reputation and therefore the mark ‘WOW!’ is exclusively

associated with the Plaintiff.

3.5. In order to statutorily safeguard its rights over its various ‘WOW!’

formative trademarks, the Plaintiff has obtained trademark registrations which

are reproduced herein under:

CS(COMM) 1161/2024 Page 4 of 30

CS(COMM) 1161/2024 Page 5 of 30

3.6. The Plaintiff has a registered domain name/website

www.wowmomo.com, which was registered on 28.07.2013 in its favour.

3.7. The details of the sale turnover of the Plaintiff’s products are given at para

‘18’ of the plaint, and for the year 2023-2024 the same is Rs. 453.932 Crores.

The amount spent by the Plaintiff on promotion of its brand and trademarks is

given at para ‘21’ of the plaint and for the year 2023-2024 the same is Rs. 10.37

Crores.

3.8. The Plaintiff also has substantial social media presence on (i) Facebook

with 657,000+ likes and 656,000+ followers; (ii) Instagram with around 94,700+

followers; and (iii) LinkedIn with 42,000+ followers.

3.9. The Plaintiff has been vigilant about its trademarks and has obtained

various orders from this Court protecting its trademarks, the details of the same

is given at para ‘28’ of the plaint.

CS(COMM) 1161/2024 Page 6 of 30

3.10. In December, 2024 the Plaintiff got to know of the intended launch of the

Defendant No.1’s business activities in India under the impugned mark ‘WOW

BURGER’/ ‘ ’/ ‘ ’, in collaboration with Defendant No.

2, by the LinkedIn post of the Defendant No.2.

3.11. He stated that the Defendants have slavishly copied the dominant/essential

feature ‘WOW!’ for identical goods and services. He stated that ‘WOW!’ is the

essential feature of the trademark of the Plaintiff which has been copied by the

Defendants and therefore on this ground alone the injunction must be granted in

favour of the Plaintiff. In this regard, he relied upon the judgment of this Court

in M/s Amar Singh Chawal Wala v. M/s Shree Vardhman Rice and Genl.

Mills

1

.

3.12. He stated that the trademark of the Plaintiff has to be compared with the

impugned mark of the Defendants as a whole

2

and thereafter the said comparison

would show that both the marks are exactly similar.

3.13. He stated that the mark ‘WOW!’ is arbitrary and is not associated with the

food/restaurant industry. He stated that the said mark is not descriptive or generic

for the food products or services and therefore, the said mark is at best distinctive

and/or suggestive.

3

3.14. He stated that due to continuous and extensive use since 2008, the

Plaintiff’s trademarks including ‘WOW!’ series of marks have acquired

secondary meaning due to immense goodwill and reputation of the Plaintiff.

1

2009 SCC OnLine Del 1690.

2

Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, at Paragraphs 6 to 8.

3

Bata India Limited v. Chawla Boot House & Anr., 2019 SCC OnLine Del 8147, at Paragraphs 27 to 32.

CS(COMM) 1161/2024 Page 7 of 30

3.15. He stated that it is a settled principle of law

4

that the disclaimer on some

trademarks does not disentitle the Plaintiff from enforcing its right in part, of the

trademark, against the third-party.

3.16. He stated that the stand taken by the Plaintiff in respect of third-party’s

trade mark in response to the objections of the Registrar of Trademarks cannot

be held as an estoppel

5

against the Plaintiff in the present proceedings, because

it relates to a different party/mark.

3.17. He stated that considering that the goods and services of both the parties

in question relate to the food industry grant of injunction becomes necessary.

3.18. He stated that in these facts the Plaintiff has established a prima facie case

in its favour, the balance of convenience also lies in favour of the Plaintiff and

against the Defendants and irreparable injury will be caused in case an order of

injunction is not granted.

3.19. The learned counsel for the Plaintiff has filed written submissions dated

28.07.2025.

Analysis and Findings

4. This Court has heard the learned Senior Counsel for the Plaintiff and

perused the record.

5. The captioned application was listed before this Court on 19.12.2024,

wherein the predecessor Bench of this Court issued notice to the Defendants.

Since none appeared on behalf of the Defendant No.1 after service of summons

and notice, the right of the Defendant No.1 to file written statement was closed

vide order dated 09.07.2025.

4

Sona Mahindra Pvt. Ltd. v. Sona BLW Precision Forgings Ltd. and Ors., 2023 SCC OnLine Del 2184 at

Paragraphs 39, 40, 55 and 56 and Cadbury India Ltd. & Ors. v. Neeraj Food Products, ILR (2007) II Delhi

1065 at Paragraphs 68 and 79.

5

Telecare Network India Pvt. Ltd. v. Asus Technology Pvt. Ltd., 2019 SCC OnLine Del 8739, at Paragraphs 41

and 42.

CS(COMM) 1161/2024 Page 8 of 30

6. The Defendant No.2 has also been served as recorded by this Court in the

order dated 25.07.2025, but none has appeared on behalf of the Defendant No.2

throughout.

7. The captioned application was finally heard on 30.07.2025 and the

judgment was reserved and none appeared on behalf of the Defendants on the

said date as well.

8. The Plaintiff has filed the captioned application seeking the following

relief:

“a. An order of interim injunction restraining the Defendants, their

proprietors, partners or directors, as the case may be, its principal officers,

servants, distributors, licensees, dealers and agents, and all others acting

for and on behalf of the Defendants from selling, offering for sale,

advertising, directly or indirectly dealing in any goods and services under

the impugned trade mark “WOW”/ “WOW BURGER”/ /

or any other mark as may be identical to or deceptively

similar with the Plaintiff’s Trade Marks “WOW! BURGER” / “WOW!

MOMO” and other “WOW” formative trademarks, so as to cause

infringement of the Plaintiff’s registered trademarks as well as passing

off”

No Trademark Registration for ‘WOW’/’WOW BURGER’ in Favour of the Plaintiff

9. The Plaintiff in the fact of the present case claims that in the year 2008 the

predecessor of the Plaintiff coined the mark ‘WOW!’ and ‘WOW! MOMO’ in

Calcutta and subsequently got registrations with user claim of 2008. It is

pertinent to note that all the registration certificates which have been placed on

record by the Plaintiff only shows the registration in the composite marks i.e.,

‘WOW! MOMO’, ‘WOW! DIMSUM’, ‘WOW! THUNDERZZ’, ‘WOW !

CHICKEN’, ‘WOW! ACTIVE’, ‘WOW! CHINA’, ‘WOW! CHINESE’,

‘WOW! MOMO INSTANT’, ‘WOW! EATS’ and ‘WOW! CHIPS’.

CS(COMM) 1161/2024 Page 9 of 30

9.1. At the outset it is pertinent to note that no registration details have been

placed on record which would show that the Plaintiff has trademark registration

for the mark ‘WOW!’ or ‘WOW! BURGER’.

9.2. It is further pertinent to note that some of the registration certificates

which are placed before this Court records that the Plaintiff cannot use any

individual word of the composite marks in a standalone manner and claim

exclusivity thereof.

9.3. The trademark registrations therefore, show that the initial trademark

adopted by the Plaintiff was ‘WOW MOMO’ and subsequently other formative

marks. No registration for the mark ‘WOW’ was ever applied by the Plaintiff as

per the record. Therefore, the assertion of the Plaintiff that the mark ‘WOW’ was

also adopted by the predecessor of the Plaintiff in the year 2008, is not borne out

from the record.

9.4. The record relied upon by the Plaintiff is also wholly deficient on the use

of mark ‘WOW BURGER’ as a trademark/brand and this aspect has been dealt

in detail in subsequent part of the judgment.

Whether ‘WOW’ is the Distinctive/Dominant mark of the Plaintiff

10. The Plaintiff contends that ‘WOW’ constitutes the essential, dominant and

distinctive feature of its trademarks. It is however, important to note that ‘WOW’

is a dictionary word of common use, employed as an exclamatory remark in the

English language. Such expression which are part of ordinary parlance, have

consistently been held by the Courts to fall in the category of non-distinctive and

or descriptive marks, incapable of exclusive use by one single individual/entity.

In this regard it would be pertinent to refer to the decision of the Supreme Court

and certain decisions of this Court as well as Court of other jurisdictions which

have dealt with similar subject matter:

CS(COMM) 1161/2024 Page 10 of 30

(i) Recently, the Supreme Court in Pernod Ricard India (P) Ltd. v.

Karanveer Singh Chhabra

6

while expounding the law on Section 17(2) of the

Act of 1999 reiterated that that generic, descriptive or laudatory terms especially

those commonly used in a given trade cannot be monopolized by any one

proprietor, even where such terms form part of a registered mark. The relevant

paragraphs read as under: -

“34. It is a well-established principle of trademark law that generic,

descriptive, or laudatory terms - particularly those commonly used in

a given trade - cannot be monopolized by any one proprietor. Even

where such terms form part of a registered trademark, protection does not

extend to those elements per se unless it is affirmatively shown that they

have acquired secondary meaning - i.e., that the term has come to be

exclusively and distinctively associated with the plaintiff's goods in the

perception of the consuming public.

…

50. The appellants' attempt to combine elements from two distinct marks

- ‘BLENDERS PRIDE’ and ‘IMPERIAL BLUE’ - to challenge the

respondent's mark ‘LONDON PRIDE’, constitutes a hybrid and

untenable pleading. Each mark must be assessed independently, and

cherry-picking generic or unregistered features from multiple marks

to fabricate a composite case of infringement is not legally

sustainable.

51. It is not in dispute that the word “PRIDE” is not registered as a

standalone mark. Nor can the appellants claim exclusivity over common

elements like bottle shape or color schemes that are generic and widely

used in the industry. While the composite marks ‘BLENDERS PRIDE’

and ‘IMPERIAL BLUE’ are protected, their individual elements -

lacking distinctiveness - are not independently enforceable.

52. The piece-meal approach adopted by the appellants - seeking to

combine unrelated features from their own marks - has undermined their

claim. Apart from the shared use of a common term, there is no

meaningful similarity between the marks. Key elements such as

packaging, typography, bottle design, and label layout are materially

6

2025 SCC OnLine SC 1701

CS(COMM) 1161/2024 Page 11 of 30

distinct. In a market segment, where consumers are more discerning, the

likelihood of confusion is negligible.”

(Emphasis supplied)

(ii) A learned Single Judge of this Court in Institute of Directors v.

Worlddevcorp Technology and Business Solutions Pvt. Ltd.

7

held that

ordinary English words such as ‘Institute’ or ‘Directors’ cannot be monopolized

by one trader, since they remain in the public domain for everyone to use. The

relevant extract of the said judgment reads as under:

“28. It is well settled that words of ordinary English usage cannot be

monopolized. Else, the entire English language would be appropriated

by a few, which can obviously not be permitted. There is, therefore, in

Section 9(1)(a), an absolute proscription to registration of marks which

are inherently lacking in distinctiveness, in that they are incapable of

distinguishing the goods or services of one person from those of another.

Words of common English usage fall within this category. It is only if

the mark has attained secondary significance, by dint of continuous usage

and is entitled, therefore, to the benefit of proviso to Section 9(1), that

such a mark can be registered. Otherwise, words of common English

usage, even when put together to form a phrase of common English

usage, cannot be registered. No monopoly can be claimed by the

registrant of such a mark.”

(Emphasis supplied)

(iii) Recently a Co-ordinate bench of this Court in Yatra Online Limited v.

Mach Conferences and Events Limited

8

was dealing with a similar issue of a

quia timet action, wherein the plaintiff was claiming exclusivity over the word

‘YATRA’ in relation to the travel business. The learned Single Judge while

declining injunction observed as under:

52. It is a settled law that the generic and commonly descriptive

marks, which describe the nature of the business or the services

cannot be exclusive to the proprietor of the registered trade mark.

Section 30 of the Act provides for limits on the effect of the registered

7

CS (COMM) 611/2023 dated 11.12.2023.

8

CS(COMM) 1099/2024 dated 22.08.2025.

CS(COMM) 1161/2024 Page 12 of 30

trade mark when the use of the mark in relation to goods or services

indicates the kind, quality, quantity, intended purpose, value,

geographical origin, the time of production of goods or rendering of

services or other characteristics of goods or services.

53. … Although, it can be said that Mark ‘YATRA’ is dominant and

essential part of the registered Device Mark of the Plaintiff, the Plaintiff

cannot claim monopoly on the Mark ‘YATRA’ as the same is generic,

commonly descriptive for the service of travel and tourism. When

the Plaintiff has adopted words in common use for its own Trade

Name/Corporate Name, it runs the risk of the same Mark being used

by others. The generic or commonly descriptive word can never

become trade marks on their own as they never acquire

distinctiveness or a secondary meaning. These words do not indicate

origin or source. It is settled law that words used in everyday

language cannot be allowed to be monopolized.

(Emphasis supplied)

(iv) In the case of Marico Limited v. Agro Tech Food Limited

9

a Division

Bench of this Court went a step ahead from the general norm and held that even

tweaking of a common English descriptive word does not merit trademark

protection, and courts should take a stringent view of such claims. The subject

matter of the said judgment was the trademark ‘LOSORB’, which the Plaintiff

therein had coined from the expression ‘LOW ABSORB’. The relevant

paragraph of the said judgment reads as under:

“On this aspect one immediately feels that it is an aspect of concern

with respect to the claim of the plaintiff that if partly tweaked

descriptive words and expressions of English language are claimed

to be coined words, the same would result in a grave and absurd

situation because a non-tweaked word being a completely

descriptive word will in fact be deceptively similar to the tweaked

descriptive English language word or expression of which

registration is obtained. Meaning thereby that because of success in

getting registered a minor modification of a descriptive word or

expression of the English language, a person who gets registration

can prevent a purely descriptive use of a normal word or expression

9

FAO(OS) No. 352/2010 dated 01.11.2010.

CS(COMM) 1161/2024 Page 13 of 30

as found in English language dictionary on the ground that it would

be identical with or deceptively similar to a registered trademark- a

position which is found in the present case. Such a position, in our

opinion, cannot at all be countenanced and must be struck down

with a heavy hand.”

(Emphasis supplied)

(v) The Privy Council in the case of Standard Ideal Co. v. Standard

Sanitary Manufacturing Company

10

has held that a common English word

that only describes the nature or quality of the goods and nothing else cannot

effectively distinguish one trader’s goods from another’s. In this case, the

trademark in question was ‘STANDARD’ in connection with sanitaryware. The

relevant extract of the said judgment reads as under:

“Now the word “standard” is a common English word. It seme’s to be used

not unfrequently by manufacturers and merchants in connection with the

goods they put upon the market. So used it has no very precise or definite

meaning. But obviously it is intended to convey the notion that the

goods in connection with which it is used are of high class or superior

quality or acknowledged merit. Without attempting to define “the

essentials necessary to constitute a trade mark properly speaking” it seems

to their Lordships perfectly clear that a common English word having

reference to the character and quality of the goods in connection with

which it is used and having no reference to anything else cannot be an

apt or appropriate instrument for distinguishing the goods of one

trader from those of another. Distinctiveness is the very essence of a

trade mark. The plaintiff company was therefore not entitled to register

the word “standard” as a trade mark. The result is, in accordance with the

decision of the Supreme Court in Partlo v. Todd (1), that the word though

registered is not a valid trade mark. The action so far as it is based on

alleged infringement of trade mark must fail.”

(Emphasis supplied)

10.1. It would also be relevant to refer to the dictionary meaning of ‘WOW’ in

Shorter Oxford English Dictionary 6

th

edition, at page ‘3672’, which reads as

under:

10

1910 (27) RPC 789.

CS(COMM) 1161/2024 Page 14 of 30

10.2. The dictionary meaning shows that when this word ‘WOW’ is used as an

adjective, it signifies the ‘quality’ of the product or service for which it is used.

Under Section 9(1)(b) of the Act, 1999, a word which merely convey praise or

describe the quality or characteristic of goods or services, are not entitled to

protection as trademarks (monopoly). Moreover, Section 30(2)(a) of the Act of

1999 specifically provides that even if such a word is registered, third parties are

entitled to use it honestly and descriptively to indicate the nature, quality, or other

characteristics of their goods or services. Therefore, in the opinion of this Court,

the Plaintiff cannot assert exclusive rights over the expression “WOW”, as it falls

squarely within statutory exceptions to trademark protection and hence, it cannot

be treated as distinctive/dominant mark of the Plaintiff.

CS(COMM) 1161/2024 Page 15 of 30

10.3. Placing reliance on the aforesaid settled law and the common meaning of

the word ‘WOW’, it is concluded that ‘WOW’ is a laudatory exclamation in the

food/hospitality business, universally used to convey delight over ‘quality’ of the

food. The Plaintiff cannot convert that everyday exclamation into its private

preserve/property.

Admission of the Plaintiff qua non-distinctiveness of WOW

10.4. The other crucial aspect which requires attention of this Court and is worth

noting is that Registrar of Trade Marks while granting registration to Plaintiff’s

device marks

11

i.e., ‘WOW! MOMO’ (Device/Class 30), ‘WOW! MOMO’

(Device/Class 43), ‘WOW! THUNDERZZ’ (Device/Class 32), ‘WOW! CHINA’

(Device/Class 30), ‘WOW! CHINESE’, (Device/Class 32), has given a

disclaimer against the exclusive use of the words forming part of the composite

marks of the Plaintiff. In the opinion of this Court, these disclaimers were

appropriate as the words in question individually are common English words in

the trade of hospitality industry and therefore, cannot be appropriate by a single

trader.

10.5. A perusal of the record and especially the documents qua TM Application

No. 5321648 for ‘WOW CHINA’ and 5412950 for ‘WOW! CHINESE’, shows

that the Registrar of Trade Marks raised certain objections qua these trademark

applications on the basis of objections received from third parties. The word

WOW was also objected to.

In reply(s) to the said objections, the categorical stand taken by the

Plaintiff was that the mark of the Plaintiff is formed by combination of an English

Dictionary words ‘WOW’ and ‘CHINA/CHINESE’. It is further stated in the said

11

TM Application Nos. 2014802, 2014803, 4665746, 5321648, 5412949.

CS(COMM) 1161/2024 Page 16 of 30

replies that the said composite mark when considered as a whole makes it

distinctive of the Plaintiff’s goods and services.

10.6. The relevant part of the replies of the Plaintiff dated 27.03.2022 and

20.07.2022 to the objections of the Registrar of Trade Marks as mentioned above

reads as under:

27.03.2022:

“The objection raised under Section 9(1)(a) is not maintainable as the

applicants submit that their mark is formed by a combination of an

English dictionary word WOW suffixed with CHINA, followed by a

tagline DESI CHINESE.”

20.07.2022:

“The Applicant submits that the objection raised under Section 9(l)(a) is

not maintainable as the applicants submit that their mark is formed by

a combination of an English dictionary word WOW suffixed with

CHINESE.”

(Emphasis supplied)

Thus, the Plaintiff on its own showing admitted before the Registrar of

Trade Marks that the word ‘WOW’ alone being an English Dictionary word is

not distinctive and it is in a combination with another word that it would as a

composite mark have a distinctive character. In view of this stand, Plaintiff

cannot contend in these proceedings that the word WOW on a standalone basis

is a distinctive mark.

10.7. The binding effect of admissions made before the Registrar of Trademarks,

at this prima facie interim stage was dealt by this Court in Institute of Directors

(supra). The relevant paragraph reads as under:

“18. This Court is presently examining the matter at a prima facie

interlocutory stage, under Order XXXIX Rules 1 and 2 of the CPC. Any

admission made by either party, which is destructive of the case that

it seeks to canvass has, therefore, to be taken into consideration by the

Court while passing orders under Order XXXIX Rules 1 and 2. It

would be open to the party, during trial, to seek to escape the said

CS(COMM) 1161/2024 Page 17 of 30

admission. However, at a prima facie stage, the admission would

operate against the party making it.

19. I see no real escape for the plaintiff, from the representation made by

it before the Trademarks Registry in its reply dated 8 December 2014 to

the FER raised by the Registry, extracted in para 9 supra. It is specifically

stated, by the plaintiff, in the said paragraph, that “words used in the mark

are common English language words and are descriptive in nature and

cannot belong to any one proprietor”. In one breath, the plaintiff, thereby,

admits the textual component of its device mark both to be descriptive as

well as to be lacking in distinctive character, by stating that the textual

component of the mark constituted of common English words which could

not belong to any one proprietor.”

(Emphasis supplied)

10.8. So also, in this regard a Co-ordinate bench of this Court, in Yatra (supra)

observed that disclaimers are placed so that the proprietor of the registered mark

does not try to expand the right beyond their legitimate bounds or claim special

advantages in the disclaimed portions. The relevant portion reads as under:

“57. The disclaimers are placed so that the proprietor of the registered

mark does not try to expand the right beyond their legitimate bounds

or claim special advantages in the disclaimed portions.”

(Emphasis supplied)

10.9. In view of the admissions of the Plaintiff before the Registrar of Trademark

to the above effect, the Plaintiff cannot be allowed to approbate and reprobate

and claim ‘WOW’ as its distinctive/dominant mark. Thus, in light of the said

facts as well, the Plaintiff will not be entitled to claim exclusivity over the word

‘WOW’ stating that the same is distinctive feature of its trademark.

Whether ‘WOW’ has acquired Secondary Meaning

11. The next question which arises for consideration is whether the mark

‘WOW’ even though a common English dictionary word can be afforded

protection on the plea that it had acquired secondary meaning due to continuous

use since 2008 by the Plaintiff.

CS(COMM) 1161/2024 Page 18 of 30

11.1. The Plaintiff contends that ‘WOW’ trademarks have acquired substantial

goodwill and reputation taking the net worth of the Plaintiff company to Rs. 2500

Crores. The sales turn over and expenditure on brand promotion for the year

2023-2024 alone was Rs. 453 Crores and Rs. 10 Crores respectively. The Plaintiff

contends that in light of these facts it can be concluded that the ‘WOW’ mark has

acquired a secondary meaning.

11.2. For evaluating the aforesaid contention of the Plaintiff, this Court finds it

apposite to resort to the guiding principles which are enunciated by the Supreme

Court and this Court in various cases, some of which are referred under:

(i) The Supreme Court in its recent pronouncement Pernod Ricard India (P)

Ltd. (supra), while expounding the law on Section 17(2) of the Act of 1999

reiterated that in disputes involving composite marks, the mere presence of a

generic word in both marks would not justify a finding of deceptive similarity. It

held that if the marks, viewed in totality conveyed distinct identities, the use of a

common element which is descriptive or laudatory, will not by itself amount to

infringement has held as under: -

“32. A foundational principle in trademark law is that marks must be

compared as a whole, and not by dissecting them into individual

components. This is known as the anti-dissection rule, which reflects the

real-world manner in which consumers perceive trademarks - based on

their overall impression, encompassing appearance, sound, structure, and

commercial impression. In Kaviraj Pandit Durga Dutt Sharma v.

Navratna Pharmaceuticals Laboratories (supra), this Court underscored

that the correct test for trademark infringement is whether, when

considered in its entirety, the defendant's mark is deceptively similar to

the plaintiff's registered mark. The Court expressly cautioned against

isolating individual parts of a composite mark, as such an approach

disregard how consumers actually experience and recall trademarks.

…

32.3. Consequently, in disputes involving composite marks, the mere

presence of a shared or generic word in both marks does not, by itself,

justify a finding of deceptive similarity. Courts must undertake a holistic

CS(COMM) 1161/2024 Page 19 of 30

comparison examining visual, phonetic, structural, and conceptual

elements, to assess whether the overall impression created by the rival

marks is likely to mislead an average consumer of ordinary intelligence

and imperfect memory. If the marks, viewed in totality, convey distinct

identities, the use of a common element - particularly if it is descriptive

or laudatory - will not by itself amount to infringement.

…

43. Section 17(1) of the Trade Marks Act, 1999 grants exclusive rights

only in respect of the mark as registered. Section 17(2) excludes

protection for common or non-distinctive elements unless such elements

have acquired secondary meaning. Sections 27(2) and 29 preserve the

right to institute passing off actions and define the contours of

infringement, respectively. Notably, Section 29(3) presumes confusion

only where identical marks are used for identical goods - a condition not

met in the present case as the marks.

44. Applying the settled legal standards - including the anti-dissection

rule, the overall similarity test, and the perspective of an average

consumer - we prima facie find no deceptive similarity between the

competing marks that would give rise to confusion.

45. In the present case, the marks - ‘BLENDERS PRIDE’ and ‘LONDON

PRIDE’ - are clearly not identical. Though the products are similar, the

branding, packaging, and trade dress of each are materially distinct. The

Commercial Court and High Court have rightly held that the term

‘PRIDE’ is publici juris, and commonly used in the liquor industry.

The dominant components - ‘BLENDERS’, ‘IMPERIAL BLUE’, and

‘LONDON’ - are entirely different both visually and phonetically,

producing distinct overall impressions.”

(Emphasis supplied)

(ii) A Co-ordinate bench of this Court in the case of PhonePe Pvt. Ltd. v.

EZY Services & Anr.

12

while relying on the ratio as held in the case of Marico

(supra) held that the acquisition of secondary meaning by a mark is not to be

readily assumed and the acquisition of secondary meaning would only be

justified where the concerned common mark has been used for considerably long

period. The learned Single judge also observed that decision on distinctiveness

12

IA 8084/2019 in CS(COMM) 292/2019 dated 15.04.2021.

CS(COMM) 1161/2024 Page 20 of 30

could be made only after evidence was led by the parties. The relevant extract of

the said judgment reads as under:

“47. Having expressed this opinion, the Division Bench adverted to the

proviso to Section 9, which relates to the absolute bar against registration

of descriptive marks, where the marks had acquired distinctiveness. In

this context, the Division Bench opined that “it is only when cancellation

proceedings achieve finality of the same being finally dismissed can it be

said that a mark for which ordinarily there is an absolute ground for

refusal of registration that it has acquired a distinctive character i.e. a

secondary meaning or is a well-known trademark”. The Division Bench

went on (in para 14 of the report et seq.) to address the issue of “whether

in spite of the trademark of the appellant ‘LOW ABSORB’ being the

descriptive trademark, … the appellant (had) established its case at this

interlocutory stage of its trademark becoming so distinctive that it can

claim exclusive right and monopoly in the same by virtue of the proviso

to Section 9. This, observed the Division Bench, led to the issue of “the

meaning to be ascribed to the expression ‘distinctive’ as found in the

proviso to Section 9”. The second issue, observed the Division Bench,

was whether the trademark of Marico had, in fact, become “distinctive”.

Paras 15 and 17 of the report went on to classically explain the concept

of “distinctiveness” and acquisition of secondary meaning, as creating an

exception to the concept of non-exclusivity of descriptive marks, thus:

“The word ‘distinctive’ is not directly defined in the Act.

However, meaning of distinctive is indicated in the definitions

of ‘trade mark’ [Section 2(zb)] and ‘well known trade mark’

[Section 2(zg)]. The word has been explained in a plethora of

judgments. Distinctive has been explained to mean such use

of the trade mark with respect to the goods of a person that

the public will immediately and unmistakably co-relate the

mark with the source or a particular manufacturer/owner

thereof. The real issue which however arises is what should

be the meaning of the expression ‘distinctiveness’ in the

situation when the trade mark is a word mark of descriptive

nature. When a trade mark, which is a word mark, is arbitrarily

adapted and is such having no co-relation to the goods in

question, then in such a case distinctiveness is achieved by

normal and ordinary use of the trade mark with respect to the

goods and it has been repeatedly held that such trade mark is

entitled to the highest degree of protection. However this is

not and cannot/should not be so for a trade mark which is

a descriptive word mark. Some colour has to be taken for the

CS(COMM) 1161/2024 Page 21 of 30

word ‘distinctive’ as found in the proviso to Section 9 from the

expression ‘well known trade mark’ which follows the

distinctiveness aspect as found in the said proviso. Courts

should ordinarily lean against holding distinctiveness of a

descriptive trade mark unless the user of such trade mark

is over such a long period of time of many many years that

even a descriptive word mark is unmistakably and only

and only relatable to one and only source i.e. the same has

acquired a secondary meaning. A case in point is the use of

‘Glucon-D’ for 60 years in the recent judgment in the case of

Heinz Italia v. Dabur India Ltd., (2007) 6 SCC 1. A period of

60 years is indeed a long period of time and thus

distinctiveness of the descriptive word mark used as a

trade mark was accepted, albeit in a tweaked form of the

normal descriptive word ‘Glucose’. Therefore, when the

descriptive trade mark is used only by one person

undisturbed for a very long period of time, without anyone

else attempting to use the trade mark during this long

period time, a case can be established of a descriptive word

having achieved distinctiveness and a secondary meaning.

*****

17. Ultimately everything will turn on the facts of each

individual case and in some cases the facts may be wholly

clear even at the interim stage of deciding an interlocutory

application, in other cases (which are bound to be in a

majority) a decision on distinctiveness can only be made after

evidence is led by the parties. This is also so held by the

Supreme Court in the ‘Super Cup’ case Godfrey Philips India

Ltd. v. Girnar Food & Beverages (P) Ltd., (2004) 5 SCC

257 that distinctiveness is an issue to be established or

examined in the facts of each particular case i.e. the evidence

has to be evaluated in the facts of each individual case.”

48. In my respectful opinion, the afore extracted passage posits the exact

legal position, regarding availability of a plea of infringement even in

respect of descriptive marks, where the mark has acquired distinctiveness

and a secondary meaning. It is important to note that acquisition of a

secondary meaning is not to be readily assumed. The Division Bench

clearly held that, ordinarily, Courts should lean against holding that the

descriptive trademark has become distinctive or has acquired a secondary

meaning, and that such a conclusion would be justified only where the

trademark has been used for such a long period of time “of many many

years” that “the mark is unmistakably and only and only relatable to one

CS(COMM) 1161/2024 Page 22 of 30

and only source”. The word “only”, be it noted, has been used not

once, but thrice. The Division Bench went on to make its meaning

further clear by observing that, in the majority of cases, a decision on

distinctiveness could be made only after evidence was led by the

parties. With profound respect, I entirely agree with this enunciation of

the law.”

(Emphasis supplied)

(iii) Another Co-ordinate bench in the case of Yatra (supra) on the similar lines

held as under:

“54. The word ‘YATRA’ cannot be said to have acquired a secondary

meaning. For acquiring a secondary meaning, the primary meaning

of the said expression has to be lost and left behind. The claim of a

secondary meaning has to satisfy that although the primary meaning of

the expression with which it began, no longer means what it used to prior

to the adoption by the Plaintiff. Hence, to hold that ‘YATRA’ has acquired

a secondary meaning, the Plaintiff has to demonstrate uninterrupted use

for considerable length without any competitor attempting to use the

said Mark. For ‘YATRA’ to acquire a secondary meaning and to be

associated exclusively with the Plaintiff, it has to be explained the

primary meaning of the word ‘YATRA’, which has said to have been

lost.”

(Emphasis supplied)

11.3. Applying the aforesaid law to the facts of the present case, in the

considered opinion of this Court prima facie it cannot be said that the common

law English word ‘WOW’ has acquired any secondary meaning so as to relate it

only to the products and services of the Plaintiff, in the mind of the consumer.

The Plaintiff has been in use only since 2008 and the same cannot be treated as

‘long period of time’ as observed in PhonePe (supra) and Marico (supra). The

volume of turnover of Rs. 453 Cr. for the FY 2023-24 is also not a figure which

would persuade the Court to hold this mark acquired a secondary meaning.

11.4. It is also pertinent to note that there are other businesses in the market

which are using the word ‘WOW’ as part of their trade mark for their product

CS(COMM) 1161/2024 Page 23 of 30

and services and couple of such instance

13

has been placed on record by the

Plaintiff itself as part of the compilation dated 30.01.2025. Moreover, a random

google search would reveal that there are various other businesses enlisted which

are using the word ‘WOW’ in the food industry itself. Therefore, in the

considered opinion of this Court at this prima facie interim stage it cannot be said

that the mark ‘WOW’ has acquired any secondary meaning in relation to the

Plaintiff.

‘WOW! BURGER’ is not the trademark of the Plaintiff

12. A perusal of the plaint shows that the Plaintiff has clandestinely mentioned

all over the plaint that it has a trademark i.e., ‘WOW! BURGER’ and that the

Plaintiff has been using the said trademark continuously since 2009

14

. Some of

the relevant paragraphs capturing the said stand of the Plaintiff is reproduced as

under:

“3. That the Plaintiff is filing the present suit against the Defendants as it

has come to know that the Defendants are about to launch identical

business as that of the Plaintiff under the infringing trade mark “WOW

BURGER”. Accordingly, the suit has been filed to restrain the Defendants

from using the trade mark “WOW BURGER” or any other trade mark(s)

which are identical / deceptively similar to the Plaintiff’s trade mark i.e.,

“WOW! BURGER” / “WOW! MOMO”/ “WOW!” and other “WOW!”

formative trade marks (“Plaintiff’s Trade Marks”).

…..

7. That the Plaintiff has created a revolution in the food market, with its

house mark “WOW!”. The trade mark “WOW!” forms the essential and

significant feature of almost all the trademarks of the Plaintiff. The

consumers associate the trade mark “WOW!”/ “WOW! MOMO” /

“WOW! BURGER” and other “WOW!” formative trademarks with the

Plaintiff alone. Due to the widescale reach and positive acceptance of the

brand, the Plaintiff Company has garnered a net worth of approximately

INR 2500 Crores.

…..

13

WOW Skin Care products.

14

Paragraph Nos. 3, 7, 10, 11, 15, 17, 19, 20, 21, 22, 24, 26, 27, 36, 41 and 47.

CS(COMM) 1161/2024 Page 24 of 30

10. That the Plaintiff while expanding its business and range of products

under the “WOW!” series of trade marks, adopted the trademark

“WOW! BURGER” in the year 2009 for selling burgers in its

restaurants/ outlets and has been continuously using the same ever

since its adoption.

…..

11. That due to its continuous use of the trade mark “WOW!

BURGER” since the year 2009, the Plaintiff has been able to garner

substantial goodwill and reputation for its business under the Plaintiff’s

Trade Marks and other “WOW!” formative trademarks and the said

trademarks are accordingly exclusively associated with the Plaintiff.”

(Emphasis supplied)

13. This Court has perused the documents annexed with the plaint, which goes

on to show that firstly, the Plaintiff has got no registration in any Class

whatsoever, for the mark ‘WOW! BURGER’, secondly as per the documents

placed on record the last use of the mark ‘WOW! BURGER’ by the Plaintiff was

in the year December, 2018 and that too the mark ‘WOW! BURGER’ was last

used as a ‘menu item’ and not as a house mark/trademark/brand. Thirdly, the

invoices which have been placed on record to show use of the mark ‘WOW!

BURGER’ clearly establishes that the Plaintiff was using the mark ‘WOW!

BURGER’ only as an invoiced menu item and after 2018 there is not even a

single invoice which would show that ‘WOW! BURGER’ is even being used by

the Plaintiff as menu item, currently.

13.1. The current Menu

15

of the Plaintiff which was perused by this Court using

the google search and search over online food ordering apps (Zomato and

Swiggy) as mentioned in the plaint and documents annexed therewith, nowhere

shows that ‘WOW! BURGER’ even exists as a menu item as on date. Instead,

this Court found that the Plaintiff has been using the name ‘Moburg’ for its

Burger items. The Menu as perused by this Court is reproduced as under:

15

As on 09.09.2025.

CS(COMM) 1161/2024 Page 25 of 30

CS(COMM) 1161/2024 Page 26 of 30

Therefore, the claim of the Plaintiff in the plaint that ‘WOW! BURGER’

is its trademark and that it has been in continuous and extensive use of the same,

is not bonafide and is instead misleading.

13.2. This Court also perused the website of the Plaintiff

16

, as per the said

website there are only three brands that Plaintiff uses for selling its products i.e.,

‘WOW MOMO’, ‘WOW CHINA’, and ‘WOW CHICKEN’. These are the marks

which are the source identifier of the Plaintiff.

Significantly, food item ‘Burger’ is being sold by the Plaintiff only under

its brand ‘WOW! MOMO’ and ‘WOW! CHICKEN’. And even more

significantly, the food item Burger is not listed as ‘WOW BURGER’ in the menu

but instead as ‘Moburg’ under the brand ‘WOW MOMO’ and simply as ‘Louder

Chicken Burger’ under its brand WOW CHICKEN. This Court failed to find

any mention of ‘WOW! BURGER’ anywhere on the Plaintiff’s website. The

relevant screenshot of the Plaintiff’s website is reproduced as under:

WOW MOMO

WOW CHICKEN

13.3. Presumably ‘Moburg’/MOBURG is a combination of MOMO and

BURGER, which further shows that Plaintiff is attempting to carve out a distinct

name for its BURGER items instead of ‘WOW! BURGER’.

16

At https://wowmomodashboard.com/links/wow-momo-nutrition/.

CS(COMM) 1161/2024 Page 27 of 30

13.4. The sales figure and the advertisement expenditure which has been averred

in the plaint relates to ‘WOW! MOMO’ as a brand/trademark and has no co-

relation with erstwhile menu item i.e., ‘WOW! BURGER’.

13.5. In view of the aforementioned facts the Plaintiff has instead failed to show

that ‘WOW! BURGER’ was even being used as a trademark/brand ever. Further

in view of the last usage in 2018 of the said mark as a mere menu item (which is

even otherwise not registered), this Court is of the opinion that ‘WOW!

BURGER’ is not the trademark/brand of the Plaintiff.

The Plaintiff has tried to mislead the Court by averring that ‘WOW!

BURGER’ is its trademark/brand.

13.6. Learned senior counsel for the Plaintiff has relied upon the judgment of

this Court in Cadbury India (supra) to contend that though there is disclaimer

in some of its registrations, it would not disentitle the Plaintiff from enforcing its

subsequent registered mark vis-à-vis ‘WOW’ in subsequent registered formative

marks. This Court has come to a conclusion that ‘WOW! BURGER’ is not a

trademark/brand of the Plaintiff and that ‘WOW! BURGER’ as a mark is not

even being used by the Plaintiff currently. Therefore, in light of the said findings

of this Court the judgement in Cadbury India (supra) will not apply to the facts

of the present case as the said judgment relates to infringement of a registered

trademark.

Comparison of the marks of Plaintiff and Defendant No.1

13.7. The Plaintiff contends that the competing marks should be assessed in their

entirety, yet a perusal of the plaint shows that the Plaintiff is trying to bring the

spotlight on the mark ‘WOW!’ as the source identifier and claims that its

exclusivity has been infringed. In the considered opinion of this Court the source

CS(COMM) 1161/2024 Page 28 of 30

identifier of the Plaintiff is the composite mark ‘WOW! MOMO’ when taken as

a whole and not the mark ‘WOW!’.

13.8. The Plaintiff has placed on record details about various awards and

investments received by the Plaintiff; this Court has perused the said record and

is of the opinion that none of the said documents relates to either ‘WOW!

BURGER’ and/or standalone ‘WOW!’, instead all of that material/documents

relates to composite mark ‘WOW! MOMO’. Therefore, the assertion of the

Plaintiff that ‘WOW!’ is their source identifier, is false and incorrect, instead the

source identifier of the Plaintiff is the composite mark i.e., ‘WOW! MOMO’.

13.9. In disputes relating to trademark infringement, deceptive or confusing

similarity is the essential requirement. Composite marks are generally evaluated

as a whole, consistent with the anti‑dissection rule and from the perspective of

the average consumer with imperfect recollection. However, where a component

forms the dominant or essential feature of a composite mark (which is not the

case in the present facts), copying that element can suffice for relief sought; still,

this principle does not allow a proprietor to monopolize descriptive, generic, or

laudatory terms.

13.10. Keeping in mind these principles, it would be pertinent to reproduce the

marks of the Plaintiff and the Defendant. This Court consciously declines to

compare the mark ‘WOW! BURGER’, with the mark of the Defendant No.1 as

urged by the Plaintiff, because at this prima facie interim stage, the Court has

already observed that ‘WOW! BURGER’ is not the Plaintiff’s trademark/brand;

therefore, the relevant comparison has to be between the Plaintiff’s registered

mark ‘WOW! MOMO’ and Defendant No. 1’s mark.

Plaintiff’s mark Defendant’s mark

CS(COMM) 1161/2024 Page 29 of 30

,

13.11. The comparison of the above reproduced marks reveals that except for the

use of the words i.e., ‘WOW’ nothing in the said marks relate them to each other.

The colour combination, stylization and the theme of the two marks is completely

different. The usage of like words which are common English Dictionary words

would be of no avail, because the use of these words in absence of registration as

a composite mark and/or in absence of secondary meaning attached to it the same

cannot be afforded protection of infringement.

13.12. It is also relevant to note that the theme of the Plaintiff’s brand is yellow

which has been consistent all across its product range, which on the other hand

is not the case with the mark of the Defendant No.1 which is in only red and

white.

13.13. It would be further relevant to note that from the documents placed on

record, the Defendant No.1 using the mark and in Hong

Kong is selling burger which are of a specific type i.e., protein-rich vegetarian

burger and as per the LinkedIn post, relied upon by the Plaintiff, it is the same

type of burger, which the said post says Defendant No.1 will bring in India, on

the other hand perusal of the current menu of the Plaintiff shows that the Plaintiff

is selling vegetarian and non-vegetarian burger in the name of ‘Moburg’.

13.14. Therefore, in the considered opinion of this Court, there is no

deceptive/confusing similarity between the trademarks of the Plaintiff and the

Defendant No.1.

13.15. Learned senior counsel for the Plaintiff has relied upon the judgment of

this Court in Sona Mahindra (supra) to contend that disclaimer in the trademark

CS(COMM) 1161/2024 Page 30 of 30

registrations does not travel to the market place and for the purpose of

comparison, a disclaimed portion can also be considered along with the mark as

a whole for the purpose of ascertaining whether infringement has happened or

not.

This Court has compared the mark of the Plaintiff ‘WOW MOMO’ and the

Defendant No.1’s mark ‘WOW BURGER’ and as noted above has not found the

same to be similar.

Conclusion

14. Before concluding, it would be pertinent to mention that this Court gets a

distinct impression from the averments in the plaint that the Plaintiff is trying to

appropriate/monopolize the use of the dictionary word ‘WOW’ which this Court

cannot allow, considering the common nature of the word.

15. Therefore, in the overall conspectus, the Plaintiff has not been able to make

out a prima facie case in its favour for grant of injunction. There is no balance of

convenience in its favour and therefore, there is no question of injury.

16. Accordingly, the captioned application stands dismissed.

17. Opinion expressed by this Court herein-above are only limited to deciding

this application at the present interim and prima facie stage and would not have

any bearing on the merit of the matter.

CS(COMM) 1161/2024

18. List on 15.01.2026.

MANMEET PRITAM SINGH ARORA

(JUDGE)

SEPTEMBER 12, 2025/SK

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