After we learned about trademark infringement last week, I came across this case where Starbucks was suing a local coffee shop in India, LOL Cafe, for serving Frappucinos without their consent. Starbucks owns the mark ‘Frappucino’ and argued that LOL Cafe’s “Brownie Chips Frappucino” was dishonest and used to deceive an unwary customer.
Per s.20(1)(b) of the Trademarks Act:
The right of the owner of a registered trademark to its exclusive use is deemed to be infringed by any person who is not entitled to its use under this Act and who
(b) manufactures, causes to be manufactured, possesses, imports, exports or attempts to export any goods in association with a confusing trademark or trade name, for the purpose of their sale or distribution.
Here, Starbucks alleged that LOL Cafe’s use of the mark was an attempt at confusion, which ended up being successful in the High Court of Delhi. I was initially surprised that the Court viewed these products as an intention to create confusion because I had thought Starbucks’ international, highly established goodwill would have made it very clear to consumers that it was not endorsing a small cafe’s similarly-named drink. Without the Starbucks logo anywhere to be found, I would not have expected the Court to find a “rushed customer” would confuse the two products. However, I realized trademark infringement is not as heavily focused on the consumer’s perspective. As well, upon reading the judgement from the High Court, an intention to deceive became more clear. After repeated requests from Starbucks representatives to remove the ‘Frappuccino’ item off of their menu, LOL Cafe either ignored the communications or falsely assured them that they would do so. As well, the Court noted there was no other explanation for why LOL cafe used this mark in the first place.
This was a very interesting read and goes to show how trademarks can be used more so as a shield, in contrast to passing off.
I have linked a few articles explaining the case below, and the judgement as well:
https://qz.com/starbucks-wins-case-against-jaipur-cafes-frappuccino-1849821517
https://www.legaleraonline.com/pdf_upload/starbucks-vs-lol-cafe-anr-838168.pdf
Communications Law