The Delhi High Court Division Bench on October 16 set aside the single judge’s order, recognising that while ‘wow’ itself may be generic, the creative branding of “WOW + food-item” is protectable. Hafsah Azhar Ansari writes on the DB ruling, focusing on the Court’s finding on “idea infringement” and the implications of this ruling. Hafsah Azhar Ansari is a third year student at NALSAR University of Law, Hyderabad.
A Second Helping for Wow Momo: Delhi HC Serves Up a New Recipe for Trademark Protection
By Hafsah Azhar Ansari
When the Delhi High Court’s Division Bench recently restored Wow Momo’s interim protection against Wow Burger, it didn’t just overturn a refusal of injunction, it may have quietly expanded what counts as infringement under Indian trademark law.
At the heart of the decision is the Court’s recognition of “idea infringement” – its view that the rival had copied not merely the word “WOW,” but the concept behind the mark itself. In doing so, the Court has opened up a fascinating and uneasy question: can one own the idea behind a style of branding?
From “No Monopoly” to a New Kind of Distinctiveness
The Single Judge, in the earlier “No Monopoly over WOW” ruling (Wow Momo Foods Pvt Ltd v. Wow Burger & Anr), had taken a cautious line: “WOW,” the Court said, is an everyday exclamation, too ordinary to monopolise. Since Wow Momo held no standalone registration for “WOW” or “WOW!”, and had accepted disclaimers in its composite registrations, exclusivity was out of the question. Minor differences in font and packaging, the Court felt, were enough to avoid confusion. (Read more about the earlier judgement here).
The Division Bench, on 16th October, took a different view. Rather than dissecting the word “WOW” in a vacuum, it asked how “WOW MOMO” actually works in the marketplace. Distinctiveness, it reasoned, doesn’t come from the dictionary meaning of a word but from the creative way it’s used. The act of pairing “WOW” with a food item – WOW MOMO, WOW DIMSUMS, WOW CHINESE – had, through consistent use, created what the Court itself called a “distinctive manner of usage” (paras 38-40). In other words, the Bench saw the distinctiveness not in the word “WOW” alone but in this repeated structure of using an exclamation + food name – a structure that the respondent replicated with “WOW BURGER.”
Idea Infringement: The Court’s Bold (and Risky) Leap
In paragraph 41, the Bench stated bluntly that the case appears to be “one of idea infringement.” According to the judges, the idea of combining an exclamation like “WOW” with the name of a food item to signal quality had been replicated by the respondent. This “replication of the idea of the mark,” they said, created a likelihood of confusion and therefore amounted to infringement.
That single paragraph is what makes this judgment stand out (and also makes it controversial!). Indian trademark law does not presently recognise ‘idea infringement’ as a legal ground per se. The Trade Marks Act protects distinctive signs that identify origin, not the creative concepts underlying them. By treating the borrowing of an idea as infringement, the Court’s reasoning appears to extend protection to the branding style itself (though it did not expressly state so).
Why does this matter so much? Because the ruling edges trademark law toward territory usually associated with copyright or unfair-competition principles – not in the sense of protecting ideas, but in recognising that expressions of an idea in branding (like a recurring style or structure) can become legally significant. On one hand, it reflects a realistic understanding of how modern brands operate: consumers respond not only to words or logos but to brand architecture – repeated patterns, tones and ideas that signal a common source. This approach risks conferring mini-monopolies over broad marketing concepts (“exclamation + food”) that others might reasonably want to use. Option 1: If courts begin treating such conceptual structures as source-identifying in themselves, it could restrict competitors from adopting perfectly ordinary expressive devices (like enthusiasm, humour, or casual slang) in their branding. Over time, this may narrow the expressive vocabulary available in crowded markets such as food and hospitality. OR……… Option 2: After all, restaurants and cafés routinely use playful or enthusiastic expressions to signal excitement or quality. If one business can claim that a whole style of expression points only to them, it may leave very little creative room for competitors to communicate the same idea in a natural way.
In short, Wow Momo is amongst the first few times an Indian court has treated ‘conceptual copying’ as potentially infringing, a shift that could reshape how we think about similarity itself.
Consumers at the Centre: From Language to Perception
Underlying the Bench’s approach is a distinctly consumer-centric logic, but in a way that goes beyond the usual consumer-focused justification of trademark law. When applying the familiar “average consumer with imperfect recollection” test, courts typically examine the linguistic features of the marks – how they look, sound, are spelled, or what the word literally means. The Single Judge largely followed that route, treating “WOW” as an everyday interjection and comparing stylisation differences.
The Division Bench, however, applies the consumer test contextually rather than linguistically. Instead of asking what the word “WOW” means in the dictionary, or how the two marks differ phonetically or visually, it asks how a consumer who has repeatedly encountered “WOW MOMO” in the marketplace is likely to process the arrival of “WOW BURGER.” Its answer is practical: such a consumer would probably assume a connection or extension of the existing product line. Even if that confusion is brief or later corrected, the Court held that initial interest confusion is enough.
This reasoning reflects a broader shift, away from rigid linguistic analysis and toward marketplace perception – from “what does the word mean?” to “what does the mark do in the consumer’s mind?” Section 9 of the Trade Marks Act already ties registrability to acquired distinctiveness through use, and recent cases (like Blenders Pride and Mankind Pharma) have similarly grounded distinctiveness in consumer psychology rather than semantics. Wow Momo simply pushes that reasoning a step further.
A Family of Marks, and a Pattern of Protection
While acknowledging that Wow Momo holds no standalone registration for “WOW,” the Division Bench noted its portfolio of composite marks, like WOW MOMO, WOW DIMSUMS, WOW MOMO INSTANT, some carrying disclaimers against exclusivity over “WOW.” Together, the Court said, these create a recognisable “family of marks.” Even though the Act doesn’t expressly mention this concept, Indian courts have increasingly accepted (like in the McMonopoly Case) that consistent use of a common prefix or suffix can strengthen a mark’s distinctiveness and make confusion more likely.
By treating WOW BURGER as part of that family, the Court effectively recognised that a brand’s power can lie in its overall pattern rather than just the individual components of each mark, again echoing the conceptual logic behind “idea infringement.”
Why the Judgment Matters
The Wow Momo ruling feels significant because it blurs the line between protecting a mark and protecting a marketing idea. The ruling hints that consistently used branding styles (even when built from everyday words) may carry more legal weight than before. It also raises uneasy questions about how far courts should go in policing the borrowing of such styles.
If “idea infringement” gains traction, where do we draw the line? Would “Yum Pizza” infringe “Yum Momo”? Could any “exclamation + food” combination be fenced off by prior use? In fact, the Court’s rhetoric here flirts with something conceptually close to dilution, protecting not the mark’s literal elements but the broader distinctive identity the brand has cultivated. The difference, of course, is that the Bench still frames this within likelihood of confusion, rather than the standalone injury-to-distinctiveness that true dilution claims involve. Still, as an interim order, its real significance lies in setting the tone for the trial ahead. Whether “idea infringement” becomes a lasting part of Indian trademark vocabulary will depend on how future benches (and ultimately the Supreme Court) choose to digest it.
Final Thoughts
By recognising conceptual copying as actionable, the Delhi High Court has added a new layer to Indian trademark jurisprudence: one that acknowledges how brands communicate through ideas, not just symbols. It’s an interesting step forward, though also one that courts will need to balance carefully against the public’s freedom to create and compete.
For now, the Court has given Wow Momo a little more bite in the fight ahead.
{Read more about such recent trademark controversies like the monopolisation of Trademarks, IPL-related rulings, ZARA fashion, DELHIVERY trouble, and Passing off cases}.