Delhi High Court Restrains Astormueller From Using 'n:' And 'nu:beat' Marks In New Balance Trademark Suit

The Delhi High Court has temporarily restrained Swiss footwear company Astormueller AG and its Indian subsidiaries from manufacturing, selling, or advertising footwear bearing the standalone "n:" logo or the "nu:beat" logo mark.

The restraint will operate during the pendency of a trademark suit filed by New Balance Athletics Inc.

Justice Jyoti Singh held that New Balance had made out a prima facie case for passing off. The court also found that the impugned logo marks were deceptively similar to its registered "N" marks.

Holding that the standalone logo marks were deceptively similar, Justice Jyoti Singh observed, "letter 'n' is the dominant part of the marks... and is identical to the N-marks and the defence of the Defendants that the added colon is sufficient to distinguish, is wholly untenable."

New Balance sued Astormueller AG, a Swiss company, and its two Indian subsidiaries. It alleged that their use of the "n:" and "nu:beat" logo marks in relation to footwear infringed its registered "N" marks and amounted to passing off.

Astormueller sells footwear under brands including Bugatti, Salamander and NUBEAT. It adopted the "nu:beat" mark in October 2021 and commenced its use in India in April 2024.

New Balance told the court that it had used the "N" logo on footwear in the United States since the 1970s. It obtained its first Indian registration for the mark in 1987. The company also pointed out that the Delhi High Court had earlier declared its shaded "N" logo, as well as the NEW BALANCE and NB marks, to be well-known trademarks.

Astormueller argued that since both sides held registrations for their respective marks, New Balance could not maintain an infringement action.

It also contended that its lower-case "n:" logo, featuring what it described as a "fanciful colon device", was visually and phonetically distinct from New Balance's upper-case "N".

The court rejected that contention, holding that registration does not bar a passing off action. Comparing the rival marks, it ruled that the nu:beat word mark was sufficiently distinct.

However, the standalone "n:" logo and the "nu:beat" logo mark were deceptively similar to New Balance's registered "N" marks.

The court also relied on Astormueller's submissions before the Trade Marks Registry. There, the company had described the "n:" logo as a combination of the letters "n" and "B".

Referring to that submission, Justice Singh observed, "if this position is accepted then prima facie there is no scope of contest on the deceptive similarity by the Defendants as in this event the mark will be read phonetically as 'NB', which is Plaintiff's mark declared as a well-known mark by this Court."

Applying the doctrine of initial interest confusion, the court held that even a fleeting association in a consumer's mind could establish deceptive similarity.

It noted that the parties sold identical goods through the same trade channels to the same class of purchasers.

The court also found that New Balance was the prior user of the "N" marks in India. It noted that Astormueller had admitted it started using the nu:beat marks in India only in April 2024. By then, New Balance had already established its presence in the Indian market.

On the issue of prior use, Justice Singh observed, "There is another crucial factor which weighs heavily in favour of the Plaintiff and that is the prior use of the N-marks. From the narrative of facts, it clearly emerges that Plaintiff is the prior user of the N-marks in India."

Finding that the balance of convenience favoured New Balance because of its prior and extensive use of the "N" marks, the court granted an interim injunction pending disposal of the suit.

It restrained Astormueller AG and its Indian subsidiaries from manufacturing, selling or advertising footwear bearing the standalone "n:" logo, the "nu:beat" logo mark, or any other mark deceptively similar to New Balance's registered "N" marks.