The Bombay High Court on Thursday dismissed the interim injunction application filed by fintech unicorn PhonePe against BharatPe's Buy-Now-Pay-Later (BNPL) arm PostPe, for restraining the use of the brand name 'PostPe, which was identical or similar to PhonePe's trademarks.
"The comparison of the two marks, even taken as a whole,
does not prima facie show any similarity or deceptive
similarity...On this basis, it was submitted that the application deserved
to be dismissed," the Bombay High Court said in its order dated April 6.
“This is another jolt to PhonePe’s attempts to monopilise the word “Pe”, which is a misspelling of the word “Pay”. We are happy to share that the injunction application by PhonePe against PostPe has been dismissed. Earlier, the Delhi High Court had refused to grant injunction on BharatPe’s brand name to PhonePe. We will continue to take all necessary steps to defend ourselves against any ill-conceived actions taken by PhonePe," said a spokesperson of BharatPe in a media statement.
The plaintiff (PhonePe) has, therefore, failed to demonstrate a prima facie case in respect of, both, infringement and passing-off in the context of its trademark 'PhonePe', the court said.
This is not the first occasion on which the two fintech giants havelocked horns against each other before the court of law.
In 2019, PhonePe filed a suit against BharatPe in the Delhi High Court alleging that by using the trademark ‘BharatPe’, the company had infringed upon the registered trademark of‘PhonePe’.
In August, 2018, PhonePe had in fact issued a cease and desist notice, calling upon theBharatPe to stop using trademark name ‘BharatPe’, with 'Pe' written in Devanagari Hindi script.
In response to this BharatPe agreed to stop using ‘BharatPe’ with ‘Pe’ in Devanagari and gave up use of the same. Thereafter, the defendant started using the mark ‘BharatPe’ only for its services.
In 2021, PhonePe filed a Commercial IP Suit against BharatPe for registration of the trademark ‘PostPe, and ‘postpe’ in various classes. PhonePe argued that BharatPe was trying to claim some sort of exclusivity or distinctiveness in part of its mark i.e. 'pe'.
"It was contended that due to the use of the infringing trademark 'postpe' on the part of the BharatPe, the business of the PhonePe had indeed suffered," the order said.
BharatPe argued that the nature of services provided by them
is distinct from the services provided by PhonePe.
"It is submitted that 'postpe' is coined from the concept of postponed payment. It is stated that 'postpe' itself is a uniquely coined expression, indicating that the customers can buy now and pay later," BharatPe argued.
However the Bombay High Court said that the comparison of the two marks, even taken as a whole, does not show any similarity or deceptive
similarity.
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