Trademark Distinctiveness and the Doctrine of Initial Interest Confusion

Introduction: Wow Momo Foods Pvt. Ltd. Vs. Wow Burger – Trademark Infringement Case

The case of Wow Momo Foods Pvt. Ltd. Vs. Wow Burger & Anr. presented before the Delhi High Court concerned a trademark dispute between two entities in the food business. The appellant, Wow Momo Foods Pvt. Ltd., is a renowned food chain known for its trademarks WOW MOMO, WOW DIMSUMS, and WOW MOMO INSTANT. These marks, registered under various classes of the Trade Marks Act, 1999, have become synonymous with fast food, particularly momos and related culinary products.

The appellant had adopted and used the word and device marks containing “WOW” since 2008. It expanded operations to over 30 cities with more than 600 outlets across India, achieving a turnover exceeding ₹450 crores in 2023–2024 and maintaining an online presence through its domain wow.wowmomo.com, registered in 2013.

In December 2024, the appellant discovered that the respondent, Wow Burger, was preparing to launch food services in India under the mark WOW BURGER. The appellant claimed that this infringed its registered marks and amounted to passing off. Consequently, a suit (CS (COMM) 1161/2024) was filed before the Delhi High Court seeking an interim injunction. However, by order dated 12 September 2025, the learned Single Judge refused the injunction, leading to this appeal.

Procedural History

The appellant’s interlocutory injunction application (IA 48983/2024) was dismissed by the Single Judge, who held that “WOW” is a common English word and cannot be monopolized. It was noted that “WOW” was not registered standalone and that some registrations carried disclaimers disallowing exclusivity over individual words.

Dissatisfied, Wow Momo filed an appeal under Section 13 of the Commercial Courts Act before a Division Bench. Despite service of notice, the respondents did not appear. The Division Bench decided the appeal based on the appellant’s submissions.

The Core Dispute

The central issue was whether the respondent’s mark WOW BURGER infringed the appellant’s registered marks WOW MOMO, WOW MOMO INSTANT, and WOW DIMSUMS.

• The appellant argued that its registrations granted an exclusive right under Section 28 of the Trade Marks Act, 1999.
• The respondent’s use of “WOW” with another food item would cause confusion and association.

Although unrepresented, the Single Judge’s reasoning that “WOW” was common and not protectable was the principal issue on appeal.

Legal Reasoning and Analysis

The Division Bench examined key provisions of the Trade Marks Act, including Sections 9, 17, 28, 29, and 30. It clarified that under Section 29(2)(b), infringement arises when a registered mark is similar to another used for similar goods, causing confusion among consumers.

Distinctiveness of the “WOW” Element

The Court observed that while “WOW” is a common exclamation, the marks WOW MOMO and WOW DIMSUMS had acquired a distinctive and unique identity. The combination of an exclamation with a food item formed a distinctive composite mark.

Idea Infringement and Creativity

The Court held that though a common word may not be protectable alone, the inventive idea of pairing “WOW” with food items was unique to the appellant. The respondents’ similar structure (WOW BURGER) suggested intent to trade upon the appellant’s brand identity.

Key Judicial Precedents Cited

Family of Marks Doctrine

The Bench applied the family of marks doctrine, stating that when a company owns multiple marks sharing a common prefix (e.g., WOW MOMO, WOW DIMSUMS), they acquire collective distinctiveness. Another mark with the same prefix in the same trade area naturally causes confusion.

Initial Interest Confusion

The Court applied the initial interest confusion test, holding that consumers encountering “WOW BURGER” might assume association with “WOW MOMO.”

Judicial Reasoning and Decision

The Division Bench held that the Single Judge erred in treating “WOW” as descriptive. It emphasized that while “WOW” alone might be common, its combination with food items formed a distinctive mark. The respondents’ mark infringed under Section 29(2)(b).

The Bench concluded that pairing an exclamation with a product name imparts uniqueness deserving protection. The appeal was allowed, and the respondents were restrained from using “WOW BURGER” or any deceptively similar mark.

Law Settled

• Composite Marks: Must be assessed as a whole, not dissected.
• Idea Infringement: Creative combinations of common words can be protected.
• Family of Marks Doctrine: Similar prefixes or suffixes in related marks gain broader protection.
• Initial Interest Confusion: Even temporary consumer confusion constitutes infringement.
• Distinctiveness of Exclamatory Marks: Expressions like “WOW” can acquire brand distinctiveness.

Final Decision

The Division Bench of the Delhi High Court allowed the appeal and set aside the Single Judge’s judgment dated 12 September 2025. The respondents were restrained from using “WOW BURGER” or any similar mark likely to cause confusion with the appellant’s brand.

Disclaimer

The information provided is for public interest and educational purposes. Readers should exercise discretion when interpreting and applying this material, which may reflect subjective interpretations.

Written By

Advocate Ajay Amitabh Suman, IP Adjutor (Patent and Trademark Attorney), High Court of Delhi.