'Schezwan Chutney' Descriptive Of Quality: Delhi High Court Rejects Capital Foods' Plea For Interim Injunction Against Alleged Trademark Infringement

Refusing to grant an interim injunction in favour of Capital Foods against use of the mark ‘Schezwan Chutney’ by Radiant Indus Chem for its products, the Delhi High Court has said that the mark is a descriptive term.

Justice Navin Chawla said that extensive use of the mark ‘Schezwan Chutney’ or ‘Szechuan Chutney’ by other manufacturers indicates that the industry recognizes the mark as a description of the product.

“In the present case, in my prima facie opinion, the combination of the two words does not take away the descriptive nature of the words as they still continue to describe the nature and quality of the product in question. In fact, it is together that they become descriptive,” said the court.

The court made the observations in its decision on an application filed by Capital Foods for grant of an ad interim injunction to restrain Radiant Indus Chem from using ‘Schezwan Chutney’ or ‘Szechuan Chutney’ marks for selling its products.

Capital Foods, which produces a wide variety of dips, spreads, condiments, sauces, noodles, soups, pastes, dressings, ready-to-eat products and other food preparations, has filed a suit against Radiant Indus Chem for its product ‘Mrs. Foodrite Schezwan Chutney’.

Capital Foods said it was the first to coin and independently invent a distinctive trade mark ‘Schezwan Chutney’ in relation to dips and spread, and has a registration for goods covered in Class 30, including sauce.

Observing that ‘Schezwan Chutney’ in effect depicts a ‘Chutney’ (sauce) which has a ‘Schezwan’ flavour, the court agreed with a submission made by the defendant that if protection is to be granted to such a mark then there is no reason why such protection be also not granted to ‘Tamarind Chutney’ or ‘Tomato Chutney’, as they are also combinations of words in English and Hindi.

Stating that competitors are likely to use the two words - “Schezwan” and “Chutney”- to describe their product, and, in fact, they do indeed describe them using these words, the court said:

“There is not much imagination required to get to the description of the product itself, that is, a sauce with Schezwan flavour”.

On Capital Foods’ argument that it has taken legal action against certain third parties who have used the mark and there are certain orders of injunction passed in its favour, Justice Chawla said that it is not the case of the plaintiff that these orders are final adjudication of its claims or that they bind the court or the defendant in any manner.

Capital Foods had also argued that the mark has acquired distinctiveness and a secondary meaning. However, the court said that mere sale figures may not be an adequate yardstick to determine whether the mark, though descriptive in nature, has acquired a secondary meaning by its usage by the plaintiff.

Whether the mark has acquired a secondary meaning and distinctiveness, would have to be considered on evidence led by the parties, the court said.

Dealing with Capital Foods’ argument that the use of the mark ‘Ching’s’ by it and ‘Mrs. Foodrite’ by Radiant Indus Chem is not sufficient to defeat its claim of infringement or passing of, the Court said: “ … in my opinion, it is use of these house marks that distinguish the source of the goods, while the words “SCHEZUAN CHUTNEY” identifies the nature of the product”.

Observing that Capital Foods’ trademark registration is under challenge by not only Radiant Indus Chem but also third parties, Justice Chawla said, “…once the Court prima facie finds that the mark is descriptive of the quality and intended purpose of the goods, the defendant would be entitled to seek protection against an action of infringement by placing reliance on Section 30(2)(a) and Section 35 of the [Trade Marks] Act.”

“At the present stage, it cannot be held that the adoption of the mark “SCHEZWAN CHUTNEY” by the defendant is dishonest, thereby disentitling the defendant from the protection against a claim of infringement,” said the court.

The Court thus refused to restrain Radiant Indus Chem from using the mark ‘Schezwan Chutney’ Or ‘Szechuan Chutney’.

It ordered that the interim order dated 16.09.2022 is made absolute. The Court in that order had declined to grant injunction against using the mark ‘schezwan Chutney’, while at the same time, it had restrained the Radiant Indus Chem from using a similar trade dress, packaging and adopting or imitating Capital Foods’ marketing and advertising content.

In the suit, Capital Foods has submitted that ‘Szechuan’ is a province of South-West China which is known for bold flavours, particularly the pungency and spiciness resulting from the use of garlic and chilli peppers. It has further said that “Chutney” is a spicy condiment of Indian origin, made of fruits or vegetables with vinegar, spices, and sugar.

“Accordingly, the unique and arbitrary combination of the “SCHEZWAN‟ and “CHUTNEY‟ makes “SCHEZWAN CHUTNEY’ a coined and invented trademark which is inherently distinctive of the plaintiff,” according to Capital Foods.

Case Title: Capital Food Private Limited versus Radiant Indus Chem Pvt. Ltd.