The lock horns between the two well known online payment service via there applications were going on i.e.Phonepe Pvt. Ltd. v. EZY Services & Anr. The plaintiff, Phonepe Pvt. Ltd., had filed the commercial suit against the BharatPe for violation of their rights in the trademark,due to the adoption and use of the mark ‘Pe’ by the ‘BharatPe’.
PhonePe has as of late filed an application under the steady gaze of the Delhi High Court,looking for interim injunction against the ‘BharatPe’ on the use of the term ‘Pe’ as an addition to its brand name and among other reliefs, for restraining its use of ‘Pe’ or any deceptive variant of ‘PhonePe’, which is identical and/or similar to the plaintiff trademark ‘PhonePe’, in respect of payment services or any other manner amounting to infringement and passing off of the plaintiff’s trademarks.
PhonePe claimed that by utilising the term ‘Pe’ in its addition, BharatPe had encroached their brand names and were endeavouring the complimentary lift on PhonePe’s generosity.
However, the Delhi High Court dismissed PhonePe’s plea, holding that the term ‘Pe’ was not a particular character of the imprint,and the use of the particular term ‘Pe’ by the BharatPe was not adequate enough to create turmoil in the minds of the consumers.
Justice C. Hari Shankar held that the word “Pe” in PhonePe was nothing but a misspelling of a descriptive word “Pay”, and “no exclusivity can be claimed, over a descriptive mark, or a descriptive part of the mark, even by misspelling it”.
By misspelling “pay” as “Pe”, the legal position cannot change.the PhonePe would be as entitled to claim exclusivity over the suffix “Pe”, as it would have been had the suffix in its trademark been “Pay”.
The court observed that the “PhonePe” and “BharatPe” are both composite marks and these marks cannot be divided into “Phone” and “Pe” and “Bharat” and “Pe”.The “PhonePe” cannot claim exclusive right over the “Pe” suffix, as no infringement can be claimed on the basis of part of a registered trademark.BharatPe” trademark is not confusingly or deceptively similar.
The court, therefore, did not find a prima facie case to have been made out of, and refused to grant a interim injunction
The court in this instance upheld the well-established principle that ‘exclusivity can only be claimed on the entire mark and not parts thereof.’
Citation: PhonePe Private Limited v. EZY Services & Anr. [IA 8084/2019 in CS(COMM) 292/2019]