Bombay High Court reserves order on PhonePe trademark suit

Bombay High Court reserves order on PhonePe trademark suit

A single judge had granted liberty to PhonePe to withdraw its earlier suit and file a fresh one

The Bombay High Court (HC) has reserved the order on a plea challenging permission to PhonePe to file a fresh trademark infringement suit against Post Pe. Earlier, a single judge of the Bombay HC had granted liberty to PhonePe to withdraw its previous suit and file a fresh one.

The dispute between both digital payment players has been ongoing since 2019 after Phone Pe, the payments application owned by Flipkart, moved the Delhi High Court against Resilient Innovations BharatPe on the usage of the 'Pe' suffix for the latter's mobile application PostPe. It was claimed that PostPe was in blatant infringement and was passed off as PhonePe's trademark.

In the infringement suit, heard by the High Court, interim relief was refused after the bench noted that PhonePe had no registration of the word mark 'Pe' per se. It had a label or device mark with the word 'Pe' in the Devanagari script.

While the order was being dictated, PhonePe had through its counsel (briefed by J Sagar Associates) sought leave to withdraw the suit with liberty to file a fresh suit restricting the claim to mark PhonePe as a whole. This was granted by the single judge, who also permitted BharatPe to rely on the observations made by the judge while making submissions in the new suit.

BharatPe's counsel (briefed by Sim and San-Attorneys at Law and Khaitan & Co) challenged the portion of the order.

The appeal stated that liberty could not have been granted to allow PhonePe to cure a defect of substance, improve the frame of the suit or to overcome the possibility of failure to prove the case pleaded in the original plaint.

The counsel for BharatPe opposed the appeal on the grounds that it was not maintainable. He further stated that the appeal did not take away any alleged vested right of PhonePe, and being the registered proprietor of the trademark; the latter was entitled to statutory protection.

PhonePe contended that the appeal merely challenged the liberty granted to file a fresh suit, but it was impermissible to split prayers seeking withdrawal versus filing a fresh suit.

After hearing the submissions of both parties, the division bench enquired if PhonePe was willing to put a formal withdrawal application to which BharatPe may respond and the portion of the order under challenge could be set aside. At this, PhonePe had sought time to take instructions.

Subsequently, PhonePe requested the division bench of Justice S J Kathawalla and Justice Milind Jadhav to decide whether the leave granted by the single judge bench to PhonePe to file a fresh suit was proper or not. "If your lordships come to the conclusion on whether the appeal is maintainable or not, then, also decide whether or not leave ought to have been given. This is my submission and request," PhonePe submitted.

Since BharatPe raised an objection to the submission, the bench reserved the appeal for orders.