Boat v Boult | Phonetic Similarity May Be Less Significant In Online Sales But Can Cause Confusion: Delhi High Court

The Delhi High Court has upheld an interim order restraining smart wearable brand Exotic Mile from using BOULT trademark and logos, purportedly similar to businessman Aman Gupta’s ‘Boat’.

Though Exotic Mile sought to argue that phonetic similarity has no relevance where products are sold online, a division bench of Justices C. Hari Shankar and Ajay Digpaul held,

“Names reside in the human psyche as much because of their sound as because of their appearance, when presented as logos. The possibility of likelihood of confusion for passing off cannot be viewed solely on the basis of a hypothetical situation in which the consumer purchases the product online and has both products before him on the screen.”

It added, “The fact that the products are sold in brick-and-mortar stores is not in dispute. Besides, even when the products are sold online, if the consumer is unable to exactly recollect the name of the product which he wants, the possibility of likelihood of confusion always exists. Though, therefore, the aspect of phonetic similarity may be of somewhat lesser significance when the products are sold online, it cannot be said to be altogether irrelevant.”

The Court was dealing with an appeal preferred by Exotic Mile. The company submitted that it has discontinued ‘Boult’ marks but proposes to use the mark GOBOULT.

The High Court noted that the impugned order does not injunct them from using the said mark.

“It does not even extend the injunction to marks which may be similar to the marks Boul. The injunction is specifically restricted to the marks of Boult. In the absence of any injunction, direct or indirect, in that regard, in the impugned order, EM can obviously not be restrained from using the mark GOBOULT,” it said.

However, the Court modified the impugned order insofar as it restrained Exotic Mile from using the tagline ‘UNPLUG YOURSELF’, purportedly inspired from Boat’s ‘PLUG INTO NIRVANA’.

It observed,

“IMPL (Boat) never sought any injunction against the use of the tag line UNPLUG YOURSELF by EM. The learned Single Judge could not, therefore, have granted such an injunction. The impugned order, to the extent it injuncts EM from using the tag line UNPLUG YOURSELF is, therefore, quashed.”

Appearance: Mr. Akhil Sibal, Sr. Adv. with Mr. Gaurav Miglani, Ms. Archana Sahadeva, Mr. Sharabh Shrivastava, Ms. Taaniyaa Dograa, Ms. Anushka Aman, Mr. Harshit Bhoi, Mr. Krishnesh Bapat and Ms. Sarah Haque, Advs. for Appellant; Mr. Mukul Rohatgi, Mr. Jayant Mehta and Mr. J. Sai Deepak, Sr. Advs. with Ms. Anuradha Dutt, Mr. Tushar Jarwal, Ms. Suman Yadav, Mr. Sachin Gupta, Ms. Nikhita K. Suri, Mr. Arunabha Ganguli, Ms. Atishree Sood, Mr. Raghav Dutt and Mr. Gurudas Khurana, Advs. for Respondent

Case title: Exotic Mile v. Imagine Marketing Pvt Ltd

Case no.: FAO(OS) (COMM) 20/2020

Click here to read order

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