Bombay High Court Restrains Cloud Kitchen From Using 'BARBECUE' Mark Over Similarity With Restaurant

On 1 September, the Nagpur Bench of the Bombay High Court temporarily restrained Barbeque, Gokulpeth, a cloud kitchen from using the mark “BARBECUE” or “BARBEQUE” in a trade mark dispute with Barbecue and Barbecue Food Services Pvt Ltd, which has operated a restaurant under the mark at Sadar, Nagpur, since 1994.

Justice Y.G. Khobragade allowed an appeal filed by Tervinder Singh Jhans, the registered proprietor of the restaurant, against the District Judge, Nagpur's order which had declined to grant an interim injunction, holding that the two businesses operated from different locations. The Bench held:

“The plaintiffs are running the Restaurant and supplying food items under the name and style of 'Barbecue' at Sadar, Nagpur. However, recently, the defendants are started supplying kitchen items through the online platforms such as Zomato and Swiggy under the name and style of 'Barbecue Gokulpeth'... The Word 'Barbeque' and 'Barbecue' are phonetically similar words,”

Barbecue and Barbecue Food Services Pvt Ltd had operated the restaurant under the name “BARBECUE/BARBEQUE” at Sadar, Nagpur, since 1994. In November 2022, the company discovered that the respondents were operating a cloud kitchen under the name “Barbeque, Gokulpeth” and supplying food through Zomato and Swiggy.

It then sought an interim injunction before the District Court. The District Judge declined the relief, holding that the parties operated from different locations, Sadar and Gokulpeth. The District Court also held that “BARBECUE” or “BARBEQUE” was not exclusively associated with the company so as to constitute passing off. Jhans challenged the order before the High Court.

The High Court examined whether the respondents' use of the mark amounted to infringement. It relied on the Supreme Court decisions, including Renaissance Hotel Holdings Inc. v. B. Vijaya Sai, and noted that phonetic similarity can constitute infringement under Section 29 of the Trade Marks Act, 1999, which sets out when use of a registered trade mark amounts to infringement.

The Bench rejected the District Court's reasoning based on the different locations of the businesses. It held that permitting the respondents to continue using the mark would cause irreparable loss and injury to the appellants' goodwill and reputation.

It found that the District Judge had passed the impugned order “without appreciating the material as well law governing principles about infringement of the trade mark and passing off”. It described the findings as “perverse and unsustainable in law”.

Accordingly, the High Court quashed the District Court's order dated 4 August 2026 and allowed the appeal. It restrained the respondents, their partners, agents and assigns from using, selling, advertising or otherwise dealing with “BARBECUE/BARBEQUE” or any deceptively similar mark, label, device or copyrighted artistic work during the pendency of the suit.