Delhi High Court: In an appeal against the order dated 12-9-2025 (‘impugned order’) wherein the Single Judge of the Court had refused to restrain the use of the mark WOW BURGER by the respondent, the Division Bench of C. Hari Shankar* and Om Prakash Shukla, JJ., held that the mark WOW BURGER was deceptively similar to the mark WOW! MOMO.
The Court opined that a consumer of average intelligence and imperfect recollection was likely to get confused between the marks. Thus, the Court granted an injunction restraining the respondents from using the mark WOW BURGER.
Background
The appellant had asserted that it had coined and adopted the marks WOW! and WOW! MOMO, 
in 2008 and had been using the said marks as well as several associated marks to render catering, dine-in, delivering and take-away services in over 30 cities with 600 outlets.
The respondent was selling protein rich vegetarian burgers in Hong Long under the marks 
and 
.
The appellant had contended that by virtue of the registrations held by it under the WOW! family of marks such as WOW MOMO, WOW DIMSUMS and WOW MOMO INSTANT, it was entitled to an injunction against anyone who sought to use a mark in which WOW constituted a prominent feature as the mark would become deceptively similar to the appellant’s registered trade marks.
The appellants had instituted a suit before the Commercial Division of the Court wherein a Singh Judge had rejected their plea for an interim injunction restraining the respondents from using the mark WOW BURGER.
Aggrieved by the impugned order, the appellants had instituted the instant appeal.
Analysis, Law and Decision
The Court remarked that the limited parameters for interference in a Commercial Court order as laid down in the case of Wander Ltd. v. Antox India P. Ltd., 1980 Supp SCC 727, were that an appeal against an order of the Commercial Court, in an application for interlocutory injunction in an intellectual property dispute, is an appeal on principle. The Court does not re-appreciate the evidence or exercise the normal powers which an appellate Court would exercise under Section 96 of the Code of Civil Procedure, 1908. The task of the appellate Court is to examine whether the Commercial Court has applied the correct principles. If it has, the appellate Court is not expected to substitute its subjective view for the view of the Commercial Court.
i. The consumer of average intelligence and imperfect recollection, and the initial interest confusion test
The Court highlighted that to fulfill the requirements of infringement under Section 29(2)(b) of the Trade Marks Act, 1999 (‘the Act’), particularly of causing confusion in the minds of public, the ‘public’ is represented by a mythical consumer of average intelligence and imperfect recollection and that the likelihood of confusion has to be assessed from an ‘initial interest’ perspective. The Court further explained that if on seeing the respondent’s mark for the first time, a consumer of average intelligence and imperfect recollection wonders whether he has seen the mark before or whether the mark is associated with WOW MOMO mark which he had seen earlier, the test for initial interest confusion would stand satisfied.
ii. Distinction between infringement and passing off
The Court noted that infringement of a mark is to be tested by comparing a mark against a mark and if the marks are found to be deceptively similar, added features such as difference in getup, color, appearance and the like would be of no significance. However, for a case of passing off to be made out, the added features which may distinguish two marks would be of significance.
iii. Applying principles to fact
The Court observed that if a consumer of average intelligence and imperfect recollection, who had seen or was aware of the appellant’s mark WOW! MOMO, was to later come across the respondent’s mark WOW BURGER, he would be, at the very least, inclined to presume an association between the two marks. If WOW BURGER were to be introduced into the market, it would be normal for any average consumer, who is aware of the pre-existing WOW MOMO brand, to presume that the appellant has now launched a burger range under the name WOW BURGER. This presumption of association, which arises out of the similarity between the marks WOW MOMO and WOW BURGER, and the fact that they are both used for fast food, would result in infringement, within the meaning of Section 29(2)(b) of the Act.
The Court further noted that once an initial confusion is caused in the mind of the consumer, subsequent enlightenment of the fact of lack of connection between the two marks would not mitigate the legal effect of initial infringement. Infringement once committed, inexorably persists, and its effects cannot be undone.
iv. WOW as a common English word- Distinctive nature of the appellant’s mark
The Court noted that the impugned order had observed that since ‘wow’ was a common English term signifying praise or denoting excellence in quality, the use of the same was descriptive of the nature of the product in question and therefore incapable of monopolization or any claim of exclusivity.
The Court, however, noted that WOW is not an adjective but is rather an exclamation. The use of WOW with the name of a food item is inventive and consequently distinctive. The idea of using the term WOW with the name of a food item as a composite mark was entirely that of the appellant’s and if the respondent was allowed to similarly use WOW with another food item, an impression of association between the appellant and respondent was bound to arise.
v. Idea infringement
The Court also noted that the instant case was one of idea infringement as the idea of conveying the message that the food dispensed by it is of optimum quality by combining the exclamation WOW with the name of the food item such as MOMO or DIMSUMS, would stand replicated if the respondent were to use WOW BURGER. The Court opined that such replication would likely result in confusion and thus constituted idea infringement.
vi. The family of marks principle
The Court further noted that where the appellant has a family of registered marks with a common dominant feature, in the instant case the use of the mark WOW!, the appellant would be entitled to protection against use of the said dominant feature by any other person. This is because the use of any mark, by a third person, by combining the prefix WOW with the name of a food item, would clearly result in confusion and conveying an impression to the average consumer, that the mark is yet another in the family of the marks belonging to the appellant. Thus, the Court opined that the respondent cannot be permitted to use the mark WOW BURGER.
Therefore, the Court held that the mark WOW BURGER was deceptively similar to the appellant’s WOW! BURGER and was bound to cause confusion in the minds of a consumer of average intelligence and imperfect recollection. Thus, the Court restrained the respondents from using the marks WOW BURGER or any other similar marks.
[WOW Momo Foods Pvt. Ltd. v. WOW Burger, FAO (OS) (COMM) No. 143 of 2025, decided on 16-10-2025]
*Judgment Authored by: Justice C. Hari Shankar
Advocates who appeared in this case :
For the Appellant: Dayan Krishnan, Senior Advocate, Ankur Sangal, Ankit Arvind, Shashwat Rakshit, Amrit Sharma, Shreedhar Kale, Advocates
Buy Trade Marks Act, 1999 HERE
