Summary
Tervinder Singh Jhans and his family-run Barbecue restaurant in Nagpur’s Sadar area sued Pankaj Rai and Epices Hospitality, which began supplying food under the name Barbecue Gokulpeth through Zomato and Swiggy. The trial court had refused a temporary injunction, reasoning that the parties operated in different localities and that the word was not exclusively associated with either side. On appeal, the Bombay High Court’s Nagpur Bench held that phonetic similarity between BARBECUE and BARBEQUE, combined with the plaintiffs’ thirty-year use, registered device mark, and copyright in the label, made out a prima facie case of infringement and passing off. The ruling restores the injunction and illustrates how courts weigh phonetic similarity and online food-delivery confusion even when businesses operate from different physical locations.
Background
A restaurant brand built over three decades, and roughly Rs. 39 crore in cumulative sales, faced being undercut online by a phonetically identical name operating a few kilometres away. The Bombay High Court’s Nagpur Bench was called upon to decide whether a difference of a single letter was enough to let a rival trade on the older business’s goodwill.
Tervinder Singh Jhans, along with his proprietary concern M/s Barbecue and Barbecue Food Services Pvt Ltd (collectively, “Barbecue”), have run a restaurant and food-and-beverage business under the name “Barbecue”/”Barbeque” at Sadar, Nagpur, since 1994. Barbecue holds a registered device mark for its label under Classes 42 and 43, along with a copyright registration for its distinctive cursive lettering and diamond-shaped logo, and had recorded cumulative sales of approximately Rs. 39.04 crore between 1994-95 and 2019-20. In November 2022, Barbecue discovered that Pankaj Rai, Kumkum Pankaj Rai, and Epices Hospitality (OPC) Pvt Ltd (collectively, “Epices Hospitality”) had begun supplying food through online platforms such as Zomato and Swiggy under the name “Barbecue Gokulpeth.” Barbecue issued a cease-and-desist notice in December 2022 and subsequently instituted Trade Mark Suit No. 02 of 2026 before the District Judge-15, Nagpur, seeking a declaration and permanent injunction, along with an interim application for a temporary injunction restraining the alleged infringement. By an order dated 4 August 2026, the trial court declined the temporary injunction, holding that the parties operated from different localities within Nagpur and that the term was not exclusively associated with either party. Barbecue appealed the refusal before the Bombay High Court’s Nagpur Bench.
Issues
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- Whether the marks BARBECUE and BARBEQUE are deceptively similar within the meaning of the Trade Marks Act, 1999 (“Trade Marks Act”), despite the parties operating from different localities within Nagpur.
- Whether Epices Hospitality’s use of “Barbecue Gokulpeth” on food-delivery platforms infringes Barbecue’s registered device mark and copyright under the Copyright Act, 1957 (“Copyright Act”).
- Whether the trial court correctly applied the tests of prima facie case, balance of convenience, and irreparable harm in refusing interim relief.
- Whether the anti-dissection rule required the marks to be compared as composite wholes rather than by isolating the word “Barbecue.”
Barbecue’s Arguments
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- Barbecue adopted the mark and artistic work in 1994 and used it continuously for over three decades, acquiring substantial goodwill in Nagpur, evidenced by cumulative sales of approximately Rs. 39.04 crore.
- Barbecue holds a registered device mark under Classes 42 and 43 and a copyright registration dated 6 July 2022 for the artistic work comprising its cursive lettering and diamond-shaped logo.
- Consumers on food-delivery aggregators such as Zomato and Swiggy do not distinguish businesses by physical locality, so Epices Hospitality’s phonetically similar listing was likely to cause confusion regardless of the Gokulpeth address.
- Relying on R. Dongre v. Whirlpool Corporation ((1996) 5 SCC 714) and Renaissance Hotel Holdings Inc. v. B. Vijaya Sai ((2022) 5 SCC 1), Barbecue argued that phonetic and visual similarity between registered and impugned marks used for identical services is sufficient to establish infringement under Section 29 of the Trade Marks Act without a separate inquiry into actual confusion.
Epices Hospitality’s Arguments
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- The words BARBECUE and BARBEQUE are distinct, and Barbecue’s registration protects only the composite device mark, cursive script, and diamond logo, not the word “Barbecue” as such.
- Barbecue’s own pending application to register the word mark BARBEQUE was still sub-judice before the Registrar, undermining any claim to exclusive rights over the word alone.
- Epices Hospitality operates a cloud kitchen from Gokulpeth using no label or logo resembling Barbecue’s device mark, making the two businesses easily distinguishable to consumers.
- Citing Haveli Restaurant and Resorts Ltd. v. Registrar of Trademarks (2025 SCC OnLine Del 8616) and People Interactive (India) Pvt Ltd v. Vivek Pahwa (2016 SCC OnLine Bom 7351), Epices Hospitality argued that common, descriptive trade terms cannot be monopolised and that stylistic differences defeat any claim of deceptive similarity.
Court’s Analysis
Phonetic Similarity Over Geography
The court noted that Barbecue had used the mark and artistic work since 1994, held a registered device mark under Classes 42 and 43, and possessed a copyright registration for its distinctive get-up, none of which Epices Hospitality disputed. The court observed that the trial court had rejected the barbecue trademark injunction application chiefly because the two businesses functioned from different localities within Nagpur, Sadar and Gokulpeth, and reasoned that this factor alone could defeat a claim of confusion. The court found that this approach overlooked how consumers actually encounter food businesses today, through aggregator platforms such as Zomato and Swiggy, where physical distance between outlets carries little weight against a name that sounds identical on a screen. The court held that BARBECUE and BARBEQUE are phonetically indistinguishable, and that Epices Hospitality’s use of Barbecue Gokulpeth for online food supply was liable to create an association with the appellants’ established restaurant business.
The Anti-Dissection Rule and Composite Marks
The court further observed that trademarks must be compared in their entirety rather than by isolating individual elements, drawing on the anti-dissection principle recently reaffirmed by the Supreme Court in Pernod Ricard India Pvt. Ltd. v. Karanveer Singh Chhabra (2025 SCC OnLine SC 1701). The court reasoned that while Epices Hospitality argued the plaintiffs’ registration covered only the composite device mark, cursive script, and diamond logo, and not the bare word, the overall commercial impression created by the parties’ respective usages, dominated by the phonetically similar word “Barbecue”, was what mattered to an average consumer of imperfect recollection. The court opined that the pendency of Barbecue’s separate word-mark application did not diminish the strength of its existing device mark and copyright registrations, both of which predated Epices Hospitality’s adoption of the name in 2022.
Weighing Prima Facie Case, Balance of Convenience, and Irreparable Harm
The court stated that Barbecue had established a prima facie case of infringement and passing off, given its long, continuous, and commercially substantial prior use against Epices Hospitality’s recent adoption of a deceptively similar name without any registration of its own. The court found that the balance of convenience favoured Barbecue, since restraining Epices Hospitality from using the disputed name pending trial would cause comparatively limited disruption, whereas permitting continued use risked irreversible dilution of Barbecue’s three-decade reputation. The court concluded that refusal of the barbecue trademark injunction at the trial stage was, on the facts and the governing case law, a perverse exercise of discretion warranting interference in appeal.
Findings
In view of the observations and the arguments presented by both the parties, the Bombay High Court held that:
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- The Appeal Against Order No. 42 of 2026 is allowed, and the trial court’s order dated 4 August 2026 refusing a temporary injunction is quashed and set aside.
- Barbecue has prima facie established infringement of its registered device mark, copyright, and passing off arising from Epices Hospitality’s use of the deceptively similar name BARBECUE/BARBEQUE.
- Epices Hospitality, along with its partners, assigns, licensees, and agents, is restrained from using, selling, advertising, or otherwise dealing in the mark BARBECUE/BARBEQUE or any deceptively similar mark during the pendency of the suit.
- No order was made as to costs.
Case Citation: Tervinder Singh Jhans and Others v. Pankaj Rai and Others, Appeal Against Order No. 42 of 2026, High Court of Judicature at Bombay, Nagpur Bench, decided on 1 September 2026. Available at http://indiankanoon.org/doc/26946735/.
Authored by Gaurav Mishra, IP Attorney, BananaIP Counsels