Delhi High Court Refuses To Cancel ‘Burger King’ Trademark, Stays Operation Of Registered Mark ‘Burger King Family Restaurant’

Refusing to cancel the mark “Burger King” registered in favour of multi-national fast food chain Burger King, the Delhi High Court has stayed the operation of a registered trademark “Burger King Family Restaurant” observing that it is likely to create confusion in market.

Justice Amit Bansal stayed the operation of the mark registered in favour of a restaurant till final adjudication of the rectification petition moved by Burger King.

Passing another order, the court dismissed various rectification petitions filed by Vijender Kumar, owner of Burger King Family Restaurant, seeking cancellation or removal of several marks registered in favour of Burger King from the Register of Trade Marks.

“Since the rectification petitions were admittedly filed after filing of the aforesaid suit, in terms of the judgment in Patel Field Marshal (supra), the rectification petitions could only be filed upon finding of the Civil Court as regards the prima facie tenability of the plea of invalidity,” the court said while dismissing the rectification petitions.

Justice Bansal also observed that the impugned trademark “Burger King Family Restaurant” was adopted by Vijender Kumar dishonestly to trade upon the established goodwill and reputation of Burger King.

“The nature the impugned mark is such that it is likely to deceive public and create confusion in the market as regards the source of the goods manufactured and sold under the impugned trademark. The petitioner has made out a prima facie case in its favour,” the court said.

While staying the operation of the impugned mark, the court granted liberty to Kumar to move an appropriate application seeking vacation or modification of the order in case he succeeds in the appeal filed by him against the order confirming ex-parte interim injunction granted in favour of Burger King.

Title: BURGER KING COMPANY LLC v. VIRENDRA KUMAR GUPTA & ANR.

Citation: 2023 LiveLaw (Del) 350

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