SUBWAY ILLC V.INFINITY FOOD & ORS.

Recently, the Delhi High Court refused to grant an interim injunction to Subway IP LLC (“Plaintiff”) against Infinity Food & Ors. (“Defendants”), from using marks, layout, décor, etc. allegedly similar to that of the Plaintiff’s marks, in relation to restaurants.

It was the Plaintiff’s case that the Defendants are using marks, such as SUBERB, VEGGIE DELICIOUS, SUB ON A CLUB, and décor, wall hangings, food preparation procedures, websites, etc. which are similar to that of the Plaintiff’s SUBWAY, VEGGIE DELITE and SUBWAY CLUB marks, and signage, décor, etc. The Plaintiff submitted that it had sent the Defendants, a cease and desist letter pursuant to which, the Defendants changed the colour scheme of its marks, logos, décor, etc. The Plaintiff continued to be of the opinion that its rights were being infringed, and filed the present suit.

The Defendants submitted that the Plaintiff cannot claim monopoly over the words SUB, VEGGIE and CLUB since they are common to trade in respect of sandwiches. Further, the Defendants argued that pursuant to the change in the colour scheme of its marks, décor, etc., they were entirely distinct from that of the Plaintiff’s marks, décor, etc.

The court noted that the words SUB, VEGGIE and CLUB are publici juris in respect of sandwiches. As such, the court affirmed the Defendants’ submission that the Plaintiff cannot claim monopoly over these words. Further, the court noted that the Defendants’ marks, décor, etc. are entirely distinct from that of the Plaintiff, after the change in colour scheme. Further, the court observed that no person can claim monopoly over the décor, layout, or appearance of restaurants even if they are identical. Lastly, the court stated that there is no likelihood of a person of average intelligence, who desires to solicit the Plaintiff’s restaurants, mistakenly visiting one of the Defendants’ restaurants. Accordingly, the court refused to grant an interim injunction in favour of the Plaintiff.

Subway IP LLC v. Infinity Food & Ors., CS (COMM) 843/2022, order dt. January 12, 2023.