A Division Bench of Justices C Hari Shankar and Om Prakash Shukla allowed WOW Momo’s appeal against the dismissal of its interim application in a trademark infringement suit. The Bench noted that the single judge had erred in focusing solely on “WOW” as a standalone expression, failing to recognise that the distinctiveness arises from combining the exclamation with a food item.
“The idea of combining an exclamation with the mundane reference to the food item is inventive and, consequently, distinctive. To our mind, the learned Single Judge has concentrated on whether WOW, seen as a standalone expression, is, or is not, distinctive, and has, in the process, overlooked the fact that, when used in conjunction with the name of the food item, the combined mark becomes distinctive in nature.”
WOW Momo stated that it had coined and adopted WOW! MOMO in 2008 and operates over 600 outlets in more than 30 cities. In December 2024, it discovered that WOW Burger intended to launch in India using the marks WOW BURGER and related logos, prompting WOW Momo to seek relief from the Commercial Division of the Delhi High Court.
The single judge had rejected the injunction, holding that “wow” was a common word and lacked distinctiveness. The Division Bench found that WOW BURGER was deceptively similar to WOW Momo’s registered marks, likely leading consumers to assume an association.
“A consumer of average intelligence and imperfect reflection, who is aware of, or has seen, the appellant’s mark WOW MOMO would, when he later comes across respondent’s mark WOW BURGER, be, at the very least, inclined to presume the existence of an association between the two marks,” the Bench said.
The Court ruled that this likelihood of association meets the test of infringement under Section 29(2)(b) of the Trade Marks Act, and that differences in design, colour, or get-up are immaterial in assessing infringement.
The Bench noted that the respondents had replicated WOW Momo’s branding approach by pairing “WOW” with a food item to convey quality.
“The idea of conveying the message that the food dispensed by it is of optimum quality by combining, with the name of the food item such as MOMO or DIMSUMS, the exclamation WOW would stand replicated if the respondent were to use WOW BURGER,” the judgment stated.
It further recognised that WOW Momo’s marks form a “family of marks” with “WOW” as the dominant feature, and that use of “WOW BURGER” would mislead consumers into believing it was part of the same brand family.
“The absence of any registration for WOW does not, in any manner, erode the appellant’s claim of exclusivity over the mark WOW MOMO or impact its entitlement to relief against infringement… such as WOW BURGER.”
WOW Momo was represented by Senior Advocate Dayan Krishnan along with Advocates Ankur Sangal, Ankit Arvind, Shashwat Rakshit, Amrit Sharma, and Shreedhar Kale from Khaitan & Co.
