Kerala High Court Upholds Injunction Against 'HAZZA', Finds Prima Facie Infringement Of 'LAZZA' Trademark

The Kerala High Court has upheld an interim injunction restraining the use of the mark “HAZZA” in a trademark dispute, holding that the rival mark is prima facie deceptively similar to “LAZZA” and likely to cause confusion among consumers.

A single-judge bench of Justice S. Manu was hearing an appeal filed by Taste Box challenging an order of the Additional District Court, Ernakulam, which had granted interim injunction in favour of JSF Holdings Pvt Ltd.

"in my view, the appellant, by adopting and using the mark 'HAZZA' that is similar to the registered trademark 'LAZZA' of the respondent in Class 43, for running a restaurant close to the factory of the respondent, has prima facie infringed the registered trademark of the respondent,” the Court held.

The appeal arose from an order of the District Court granting an interim injunction in a trademark infringement suit.

JSF Holdings, engaged in the manufacture and sale of food products under various trademarks, including “LAZZA”, claimed long-standing use and registration of the mark, asserting that it had acquired significant goodwill and reputation.

According to JSF Holdings, it discovered that Taste Box had applied for registration of the mark “HAZZA” and had started a restaurant-cum-bakery under the said name. It alleged that the mark “HAZZA” was similar to “LAZZA”, differing only in the first letter, and that a similar colour scheme had also been adopted.

JSF Holdings accordingly sought an interim injunction restraining the use of the mark “HAZZA”, which was granted by the District Court and challenged in the present appeal.

Taste Box contended that its mark “HAZZA Kitchen” was distinctive and independently adopted, with “HAZZA” being an Arabic word meaning “delight or pleasure”, and argued that it was not deceptively similar to “LAZZA”.

Opposing the appeal, JSF Holdings argued that the appellate court should not interfere with a discretionary interim order unless it was shown to be arbitrary or perverse, and contended that the adoption of a similar mark in close proximity to its factory indicated lack of bona fides.

Referring to settled principles of trademark law, the Court observed that the focus in such cases is on the overall commercial impression created by the competing marks and the likelihood of confusion in the minds of consumers.

“The law, therefore, recognises that even in case where there is no likelihood of confusion, the use of the trade mark by a third party can be protected in case it is shown that the registered mark has a reputation and a distinctive character. The law, in fact, affords a stronger protection to such marks and, therefore, protects even if the same is used on goods and services which are not similar. The proprietor does not have to demonstrate the likelihood of any confusion.” it observed.

The court reiterated that proof of actual deception or dishonest intention is not necessary, and that a likelihood of confusion is sufficient to establish infringement or passing off.

“There is no requirement to prove actual deception or damage. Trademarks are remembered by their overall commercial impression and even minor variations may be perceived by consumers as brand extensions or sub-brands. When the marks of the appellant and the respondent are compared, keeping in mind the above principles, on account of phonetic similarity, adoption of similar colour scheme, and the fact that the variation is minor, involving the change of a single alphabet, there is very high likelihood of the mark of the appellant being perceived as a sub-brand or brand extension of the respondent.”

The court also noted that the appellant had opened its restaurant in the same locality, directly opposite the respondent's factory, and was not operating any other outlet under the same mark, which prima facie indicated lack of honest adoption.

“It is very significant in this regard to note that the appellant chose to open the restaurant on the opposite side of the road in the same locality where the factory of the respondent is functioning… Hence there is every reason to prima facie assume that the intention was not honest,” it observed.

Holding that there was a real likelihood of consumer confusion and that the balance of convenience lay in favour of JSF Holdings, the Court found that refusal of injunction would cause irreparable harm.

Accordingly, the court declined to interfere with the interim order and dismissed the appeal.

For Appellant: Advocates Benoy K Kadavan, Laya George, S Gopakumar, Syriac TV, T.M Binitha and Sreelakshmi S.J

For Respondent: Advocates P Abraham Cherian, Jaison S Rozario, Nimmy K Joseph, Joe Joseph, Aravind Varghese, Pooja Jose and V Varun