Recently, a Single Judge Bench of the Delhi High Court comprising of Mr Justice C. Hari Shankar, pronounced a notable judgment in a commercial suit filed, namely, — Phonepe (P) Ltd. v. Ezy Services.[1] The plaintiff sued the defendants, for permanent injunction, against use, by the defendants, of “Pe” or any deceptive variant of “PhonePe” which is identical and/or similar to the plaintiff’s trade mark “PhonePe”, in respect of payment services or in any other manner amounting to infringement of the plaintiff’s trade mark, or of passing off, by the defendants, of their services as those of the plaintiff. The plaintiff and the defendants provide online payment services and are billion-dollar companies and market leaders in digital payment services, providing all types of consumer-to-consumer and consumer-to-merchant payment services via their applications (“apps”, in short).
It is pertinent to note here that the defendants’ services are available exclusively to merchants, whereas the plaintiff’s services are available to anyone who downloads the app. The Court dismissed the application and denied to grant an interim injunction against the defendants and rightly held that parties cannot misspell descriptive/generic words in order to claim exclusivity over them especially at this prima facie stage, unless there is extensive evidence that such misspelling has acquired secondary meaning through continuous commercial use, that is, different from the literal meaning, which is an aspect the High Court has held to be a matter of trial and evidence when the suit is finally heard and decided.
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