The Burger King restaurant in Camp and Koregaon Park will no longer remain Burger King as the consumer court has issued a temporary injunction ordering the city-based restaurant to refrain from using the original name of its American counterpart.
King under cover: Abiding by the consumer court's temporary
injunction, owners of the Burger King in the city have covered the
'King' in the restaurant's name at the Camp outlet. Pic/Krunal Gosavi
The order was issued after the Florida-based petitioner, Burger King, which has been operating since 1954, filed a suit against the city restaurant for copying its trade name and claimed restraining orders by way of permanent injunction against its owners, who after receiving a cease and desist notice in June 2009 from the petitioner had denied it its legal rights and insisted on using the name Burger King.
Arguing on behalf of US-based Burger King, Advocate Netraprakash Bhog stated that the petitioner had spent huge amounts on ads and promotion of its products under the trademark while gaining tremendous reputation and goodwill.
"The losses and damage to its business and reputation due to unlawful acts of the restaurant owners (Burger King in the city) are irreparable as they have usurped the trademark heedless of the statutory rights accorded to the plaintiff," said Bhog, requesting the court that the city-based restaurant, its agents and distributors be restrained by a temporary injunction from using the trademark Burger King and from advertising, offering for sale, or dealing in food or beverages under the trademark that is similar to Burger King.
On scrutiny of records, it was noticed that the petitioner has claimed infringement of its trademarks registered in India under different classes, which were registered at different points of time from April 1979 to October 2006.
The court order stated that the petitioner had registered its trademark Burger King in India in 1979, which it has been using for the past several years and the aforesaid act of the defendants amounted to infringement of the trademark.
"Since the defendants had no authority to use the trademark, it was expedient to grant ad-interim relief to the petitioners, and even advertisement of trademark without existence of goods in the market amounts to the use of the trademark," said Judge S S Gadge while passing the order.
In their reply to the petition, Shapoor and Anahita Irani, owners of the city-based Burger King, through their lawyer A Sarvate argued that the use of the trade name abroad pursuant to registration in some foreign country does not give any right to the plaintiff to claim its infringement in India.
"When the defendants started the business, they had no idea that they had an American counterpart. There is also no similarity in the plaintiff's trademark and usage of their shop with name 'Burger King' and there is no similarity in design. The logo, food, and even uniform are different," argued Sarvate.
Sarvate contended that the Iranis were using the said trademark since 1992, much prior to the registration of the trademark by the plaintiff, and that they commenced the business activities by using the said name at an earlier point of time than the plaintiff in India.