A cloud kitchen, restaurant and barbecue: Indian court restrains one party from using marks
11 September 2026
The Bombay High Court recently restrained Barbeque, Gokulpeth, a cloud kitchen operating in Gokulpeth, Nagpur, India, from using the marks Barbecue or Barbeque.
Barbecue and Barbecue Food Services, owner of Barbecue, Sadar, a restaurant located in Sadar, Nagpur, learned about the cloud kitchen and its use of Barbeque in 2022. The company then sued Barbeque, Gokulpeth for passing off, seeking an interim injunction before the district court.
Citing common law rights, Barbecue, Sadar representatives stated the restaurant has been using the name Barbecue since 1994, and the similarity in the names may cause customers to believe that the cloud kitchen is a branch or franchise of the restaurant. Additionally, Barbecue and Barbecue Food Services relied on copyright registration for a label or device mark with the word Barbecue to prove that the cloud kitchen misused the name or mark.
Barbeque, Gokulpeth argued that the word Barbeque is descriptive. Therefore, the plaintiff cannot claim exclusive rights to the name. It added that the word mark Barbecue or Barbeque is not even registered and that the application for its trademark registration was in fact under objection. It further asserted that the plaintiff’s mark was a label or device mark and the principle of anti-dissection requires comparison of the rival marks as a whole instead of isolating one-word element. Lastly, the cloud kitchen’s representatives emphasized the fact that the business has been operating for more than four years, during which no harm was done to Barbecue, Sadar and its owners.
The district judge refused to grant the relief sought by the plaintiff for the following reasons:
- Though goodwill was proven by invoices dating from 1994 showing the name Barbecue, Sadar, a case for passing off needed to be sustained by proving likelihood of confusion and deception. According to the judge, the names Barbecue and Barbeque were not exclusively associated with the company, thus ruling out a case of passing off.
- No material depicting the manner of use of the mark by the defendant was placed on record, and there was insufficient material to conclude prima facie that the defendants had reproduced or imitated the plaintiff’s registered copyright label or artistic work.
- The cloud kitchen and the restaurant are located in different places; the former in Gokulpeth and the latter in Sadar. Such a difference in geographical identifiers was sufficient to avoid a finding of confusion, the court said.
Binny Kalra | an attorney @ Ira Law, New Delhi
“Importantly, the trial court held ‘whether the plaintiff’s mark has acquired such distinctiveness that the public exclusively associates the word Barbeque with the plaintiff and whether the defendant’s adoption constituted passing off are questions which require evidence and cannot be conclusively determined at this stage,’” explained Binny Kalra, an attorney at Ira Law in New Delhi.
Barbecue, Sadar’s proprietor Tervinder Singh Jhans filed an appeal which resulted in the Bombay High Court’s decision to temporarily restrain Barbeque, Gokulpeth from using the marks Barbecue or Barbeque during the pendency of the suit.
The court’s Nagpur bench determined that the trial court had erred in its judgment, resulting in its decline of the plaintiff’s request for interim injunction.
“The appeal court framed the core question for its determination as ‘whether the defendants are infringing the name, label, copyright or trademark of the plaintiffs by using a deceptively similar name and brand,” said Kalra. “It disagreed with the trial court’s reasoning that the geographical identifiers in the rival marks were sufficient to distinguish the two at the interim stage.”
Further, the order held that Barbecue or Barbeque is not exclusively associated with the public or consumers. Therefore, it found that this did not amount to passing off. However, the order added that the trial court passed the impugned order without appreciating the material as well as the law governing principles about trademark infringement and passing off.
According to Kalra, the trial court order appears well reasoned considering the facts of the case and the nature of the word claimed by the plaintiff to be its exclusive trademark.
As for the appellate court, she said its understanding of the core issue was obviously at variance with that of the trial court. “It treated the plaintiff’s copyright registration and a recognition certificate of its business as an MSME interchangeably with a trademark registration and a basis to hold in the plaintiff’s favour.”
According to her, this is problematic. “The decision in appeal does not address the scope of protection afforded to the word Barbecue or Barbeque or deal with the respondent or defendant’s contention that Barbecue was a descriptive word. Though the respective marks are discussed in more detail in the appeal court order, it is unclear without a graphical representation where there were visual similarities between the two other than the word Barbecue or Barbeque,” Kalra explained.
Indian trademark law recognizes trademark rights via registration and under common law. Hence, non-registration of marks does not mean a party cannot assert his or her trademark rights.
“That said, absent supplemental circumstances, a descriptive word would not become distinctive even if it was used as a trademark for a long period of time. Substantial evidence would have to be led by the plaintiff to establish that the descriptive word had lost its original meaning and acquired a secondary meaning such that it now functioned purely as an indication of source; the source being the plaintiff. This would be a challenge if the descriptive word was already commonly used by other traders in some form as a part of their business name or trademark,” said Kalra.
“It remains to be seen if the losing party will appeal the decision or if the case will have a different outcome post-trial,” she added.
- Espie Angelica A. de Leon
