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Synopsis

A single judge bench of the Bombay High Court comprising Justice Manish Pitale has recently refused to grant relief to ‘PhonePe’ in a trademark infringement suit filed by the company against Resilient Innovations Private Limited for using the word ‘PostPe’.

The plaintiff, in the case, was PhonePe, claiming that they had secured the trademark 'Pe' in the Devanagari Hindi script in 2014. The company offers mobile applications that facilitate financial transactions via various payment modes, both online and offline.

The company explained that they had registered the 'Pe' mark because it signified 'on' in Hindi, which was relevant as their services are mainly focused on mobile phones. They asserted that the use of the term 'Postpe' could negatively impact their business.

The defendant, Resilient, who owns Postpe, argued that the term 'Postpe' had been coined from the idea of deferred payment, which implied that customers could purchase products now and pay for them later. They also contended that the service they offered was distinct from the payment service provided by PhonePe.

Resilient maintained that PhonePe could not claim exclusivity over the 'Pe' trademark at this stage, as it was still subject to a trial. This had been previously upheld by the Delhi High Court in an ongoing case where PhonePe had sued Resilient for their use of the 'BharatPe' mark.

The court while disagreeing with PhonePe said that,

“At this stage, this Court is unable to agree with the plaintiff that gullible or uneducated persons or even educated and aware customers would be confused between the services of the rival parties. Therefore, on this count also, the plaintiff has failed to make out a strong prima facie case in its favour for grant of interim reliefs. This Court also finds that the central idea sought to be conveyed by the two rival trademarks taken as a whole is distinct, particularly when the rival pleadings are appreciated."

The bench also said that the defendant had earned substantial goodwill and it had openly used its mark 'postpe' since the time it was introduced in respect of the financial services.

“It is settled law that when the applicant / plaintiff has failed to make out a prima facie case in its favour, the aspects of grave and irreparable loss in the absence of interim reliefs and balance of convenience pale into insignificance. Nonetheless, this Court has considered the rival material placed on record regarding goodwill generated in respect of the respective trademarks. It is found that the defendant has also earned substantial goodwill and it has openly used its mark 'postpe' since the time it was introduced in respect of the financial services provided by the defendant. The plaintiff has placed on record material to indicate the goodwill generated in its favour with passage of time and also the fact that it started use of its trademark prior in point of time” the court noted.

Case Title: PhonePe Private Limited vs Resilient Innovations Pvt Ltd