Delhi High Court issues interim injunction against sweet shop for using name "EVERGREEN"
Trademarks
Evergreen Sweet House vs. JV Evergreen Sweets and Treats & Ors.
December 23, 2024
Summary
Delhi High Court granted interim relief to Evergreen Sweet House, a sweetshop company, in their trademark infringement case against "JV Evergreen Sweets & Treats". Court observed growing significance of online food delivery and apps like Zomato and Swiggy, and noted that since both contesting parties are listed on Swiggy and Zomato, and if any unsuspecting consumer is to search for ‘Evergreen’ on these platforms, both the outlets of parties would show up.
Delhi High Court granted interim relief to Evergreen Sweet House, a sweetshop company, in their trademark infringement case against "JV Evergreen Sweets & Treats".
On the point whether the term "EVERGREEN" is generic in narture, the Court relied on an earlier judgement of 2008 (Evergreen Sweet House v. EverGreen and Ors., 2008 SCC OnLine Del 1665) which was passed in favour of the Plaintiff. The Court noted that the term "EVERGREEN" in relation to sweets and confections is arbitrary; a coined one, and rejected the stand of the contesting Defendant that the term is generic.
Court observed growing significance of online food delivery and apps like Zomato and Swiggy, and noted that since both contesting parties are listed on Swiggy and Zomato, and if any unsuspecting consumer is to search for ‘Evergreen’ on these platforms, both the outlets of parties would show up. The judgement quoted the following in Paragraph No.34:
34. It is significant to note that in the present times, online delivery of food products has become the norm and food delivery apps like Zomato (defendant no.2) and Swiggy (defendant no.3) have become extremely popular. Both the plaintiff and the defendant no.1 are listed on the food delivery applications such as Swiggy and Zomato. If any unsuspecting consumer is to search for ‘Evergreen’ on these platforms, both the outlets the plaintiff and the defendant no.1 would show up. Therefore, in my prima facie view, there is a likelihood of confusion and deception among the members of the public.
Regarding the principle of "balance of convenience", which is one of the triple test for granting injunctions, the Court further noted that the balance of convenience is also in favour of the plaintiff (Evergreen Sweet House) and against the defendant no.1 inasmuch as the plaintiff has been in business for more than sixty years whereas the defendant no.1 ("JV Evergreen Sweets & Treats.") has merely started about three years back.