Haus Marks

A few propositions of interest from Foodcraft India v. Saurabh Anand, a decision out of the Delhi High Court last week, where the Plaintiffs — the proprietors of the ASIAN HAUS line of restaurants — won an interim order in a pure passing off action banning the Urban Pallette group from using the word ‘HAUS’ as part of their restaurant and food delivery service:

First, the Court says that a pure food delivery service using the German word ‘HAUS’ — which means the English word ‘house’ and is phonetically indistinct from it — is “not in any manner connected with” food delivery (para 16). Yet, the Plaintiff’s own description of its business claims that its trademarks “have acquired [reputation] by innovation of this new concept of ‘chef at home’ i.e. where the chef would come to [the customer’s] house and cook delicious food according to the taste and appetites of customers” (para 15).

If the differentiator of the Plaintiff’s food delivery service involves so close a connection with the customer’s house or home, it is, at worst, descriptive and, at best, suggestive of its business. It is certainly not unconnected. For a decision that’s as clear-cut on other grounds, this is a pretty glaring miss.

Second, the Court finds that ‘haus’, by virtue of being a foreign language word, cannot have a generic meaning and has been coined by the Plaintiff for its business (para 28).

The first part is consistent as a principle but its applicability to this case is extremely suspect. The issue here is that the foreign language word (‘haus’) is phonetically the same as, and has the same meaning as the generic word (‘house’).

If the apprehended confusion is through consumers placing telephone orders to a food delivery service, blocking the Defendant from using ‘haus’ also blocks it from using ‘house’ which, by the Court’s own finding, is not, in any manner, connected with a food delivery service. If the apprehended confusion is through consumers seeing a visual as part of an online food delivery order, it returns us to the descriptive/suggestive problem that is built into the Plaintiff’s own adoption of the ‘HAUS’ mark. (There’s a separate issue with breaking open composite trademarks in a pure passing off case, where the Plaintiff hasn’t set up secondary meaning over the whole mark, let alone a part of it, but that’s a discussion best left for another time.)

The point on coinage is, of course, incorrect. Coinage involves invention, and the word ‘haus’ can either have been invented by the German language or by the Plaintiff — it cannot be both. It is a German language word (and, indeed, a generic German language word), and the Plaintiff’s adoption of it and packing goodwill into it for claiming rights in a service mark for food delivery in Delhi doesn’t change that.

Finally, the Court has permitted, nay encouraged, the Defendants to use ‘house’ (as in, ‘Curry House’) for their food delivery service (para 33).

This suggests that there is certainly some back-of-the-mind merit in the descriptive/suggestive diagnosis relative to the Plaintiff’s own adoption of the trademark — a question of considerable interest, should an appeals court pick this up. Given the Defendants’ mala fides here (see the slightly irritable discussion in paras 17–19), I suspect it’s unlikely.

But “haus sounds like ‘house’ and means ‘house’ but because it’s German, you can’t use it but ‘house’ which means haus and sounds like ‘house’ and means ‘house’ and because it’s English, you should absolutely use it” has red flags all over it.