BOLT TECHNOLOGY OU vs UJOY TECHNOLOGY PRIVATE LIMITED & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 26 September 2023
Judgment pronounced on: 30 November 2023

+ FAO(OS) (COMM) 45/2023, CM APPL. 11380/2023 & CM APPL. 20183/2023

BOLT TECHNOLOGY OU ….. Appellant
Through: Mr. Amit Sibal, Sr. Adv. with Ms. Swathi Sukumar, Mr. Essenesse Obam, Ms. Ayesha Guha Thakurta, Mr. Ritik Raghuvanshi, Mr. PratyushRao, Mr. Rishav and Ms. Amira Dhawan, Advs.
versus

UJOY TECHNOLOGY PRIVATE LIMITED & ANR. ….. Respondents

Through: Mr. Darpan Wadhwa, Sr. Adv.
with Mr. Amit Agrawal, Mr. Satyajit Sarna, Mr. Rahul Kukreja, Ms. Sana Jain, Ms. Radhika Yadav and Ms. Reea Mehta, Advs.

CORAM:
HON’BLE MR. JUSTICE YASHWANT VARMA
HON’BLE MR. JUSTICE DHARMESH SHARMA

J U D G M E N T
YASHWANT VARMA, J.

1. Aggrieved by the denial of an ad interim injunction by the learned Single Judge in terms of the impugned judgment dated 24 February 2023, the plaintiff has instituted the present appeal.
2. The suit itself had been preferred alleging passing off of the trade name “BOLT” by the defendants. Along with the suit, an application for grant of ad interim relief was also moved. It is the said application which has come to be rejected by the learned Single Judge leading to the filing of the instant appeal. For the purposes of evaluating the challenge as addressed in this appeal, it would be appropriate to notice the following essential facts.
3. The appellant formerly known as Taxify OU was incorporated in Estonia as a taxi aggregator purporting to provide ride-hailing services to customers in Tallinn, Estonia and Riga, Latvia. The services were commercially launched in August 2013. The plaintiff/appellant is stated to have extended its operations globally in 2014. This led to its services being made available in over 45 countries in Europe, Africa, West Asia, South America and Latin America. In 2018, the appellant adopted the brand name “BOLT” while in connection with the provisioning of services relating to ride-hailing, food and grocery delivery, rental of cars, e-bikes and scooters as well as electric vehicles.
4. The plaintiff claims to have earned revenues from the use of its trademark “BOLT” to the tune of €80 million in 2018, €148 million in 2019, €221 million in 2020 and €500 million in 2021. It is also its case that it had expended an amount of approximately €61 million in 2021 while advertising its brand and undertaking promotional activities. The mark itself has obtained registrations in 92 jurisdictions worldwide.
5. Before the learned Single Judge, the appellant has referred to two articles appearing in the CNBC in its editions dated 02 April 2019 and 10 June 2019 alluding to the launch of its services in Madrid following a rollout in Paris in the previous year as well as in London.
6. Insofar as Electric Vehicle1 charging stations are concerned and which appears to have formed the focal point of the proceedings which ensued before the learned Single Judge, the appellant is stated to have introduced the said service sometime in October 2021 in Tallin, Estonia.
7. In order to buttress its claim for the grant of ad interim reliefs, the appellant also referred to advertising campaigns which were launched in February 2020 cutting across various cities in India including Ahmedabad, Pune, Surat, Chennai and Kolkata on its mobile app and which is stated to have touched over 30 lakh customers in India.
8. The first respondent came to be incorporated in February 2020. The respondent placed reliance on numerous public posts appearing on social media platforms in October 2020 announcing the impending launch of its EV charging network under the brand “REVOS Bolt” followed by various other public posts on 16 October 2020 explaining in some detail the features relating to its BOLT EV chargers. They also refer to various invoices of November 2020 showing sale of its BOLT chargers. On 14 July 2021, the respondent obtained registration of its domain name www.bolt.earth. This was followed by applications made before the Trademark Registry on 30 August 2021 for the trade name “Bolt” both as a word as well as a device in Class 42. A First Examination Report2 came to be generated in that respect on 21 September 2021 when the Registrar brought to the attention of the respondent the existence of marks such as US BOLT, GO BOLT, MONARCH BOLT, BOLT SUPPORT KE LIMITED.
9. The respondents are stated to have responded to the FER in terms of a communication dated 07 October 2021 asserting that the cited marks would not detract from their right to seek registration of the Bolt trademark/ trade name as well as the device mark which had been applied for.
10. On the record appears a blog article dated 13 October 2021 speaking of the appellant introducing scooter charging docks on the streets of Tallinn. Insofar as the launch of charging docks are concerned, the appellant appears to have addressed the following submissions. The appellant asserts that its charging docks were launched commercially in October 2021. The said service was initially launched in Tallinn with the establishment of 9 charging stations. The launch is stated to have gained a large traction in the media across Estonia. As would be evident from one of the news articles which appears at page 1223 of the record, the appellant is stated to have commenced providing the service of EV charging docks as a pilot project in Tallinn and with the avowed intent to expand the same to other European countries.
11. On 09 December 2021, the respondent obtained a domain name registration in respect of www.boltevcharging.com. Upon coming across various articles in respect of the EV charging stations having been launched using the trade name “BOLT”, on or about March 2022, the appellant is stated to have issued a cease and desist notice upon the respondent on 24 May 2022.
12. The aforesaid notice appears to have been prompted by an article which appeared in the Business Standard on 24 March 2022 and which referred to the establishment of 10,000 EV charging points across cities in India by the respondent. It is thereafter and consequent to the respondent failing to desist from the usage of the Trademark “BOLT” that the suit came to be instituted on 23 November 2022.
13. For the purposes of establishing reputation and goodwill across the globe, the appellant appears to have addressed the following contentions.
14. It was firstly averred that its goods and services are available in over 400 cities across 45 countries in Europe, Africa, West Asia, South America and Latin America. It was asserted that it has over 100 million customers globally. It also spoke of 2.5 million drivers engaged by it offering rides over the BOLT platform. In terms of the averments made in the plaint, the appellant described itself as a global market leader in transportation, offering a wide bouquet of services which included providing vehicles for hire, micro-mobility, car sharing, EV charging stations and docks and food and grocery delivery services. Insofar as its presence across social media platforms is concerned, the stand of the appellant came to be captured by the learned Single Judge as follows: –
“7.The plaintiff operates a website https://bolt.eu/. It also has accounts on (i) Facebook with 1,707,969 likes and 1,711,954 followers, (ii) LinkedIn with 157,979 followers, (iii) Instagram with around 92,900 followers, (iv) Twitter with around 44,800 followers and (v) TikTok with around 28,300 followers and, 3,82,400 likes. The plaintiff also trades through a mobile application titled “BOLT”, available on Apple’s App Store and Google’s Play Store. The plaint asserts that, as on August 2022, the BOLT mobile app had invited approximately 96,100 reviews on the App Store of Apple and 28,70,000 reviews on Google’s Play Store. The App is downloadable in India. The plaint asserts that users in India have downloaded the app at least 2 lakh times.”
15. To buttress the claim of reputation and goodwill spanning various nations across the globe, the appellant also appears to have relied upon the following news articles and which were noticed by the learned Single Judge as under: –
“10. To emphasise the reputation and goodwill that her client commands, Ms. Sukumar has drawn my attention to the following articles, published in CNBC and the Economic Times:
CNBC
“Europe’s answer to Uber expands into the electric scooter scene in Madrid
* Bolt, formerly known as Taxify, is launching its electric kick scooter-sharing service in Madrid.
* The move marks another stepping stone in the start-up’s move toward new mobility options beyond car-hailing.
* The Estonia-based company is seeking to raise an additional round of funding from investors.
It’s a phenomenon that’s seen wild popularity – and infamy –in some U.S. cities. Now, the electric scooter craze looks set to gain further ground in Europe.
Estonian ride-hailing firm Bolt, formerly known as Taxify, is launching its electric kick scooter-sharing service in Madrid, following a rollout last year in Paris.
Rides in the Spanish capital will cost 15 cents a minute, on top of a 1 euro minimum charge. Customers need to scan a QR code to unlock the scooters and can leave them on the street once a trip is complete.
“Beating the traffic is a big issue in cities like Madrid and a lot of trips are much more efficiently covered with an electric scooter rather than a car with a driver.” Bolt co-founder and CEO Markus Villig said in a statement.
“By bringing Bolt scooters to Madrid, we’re solving two things at once; reducing car rides as well as saving time and money for our customers.”
The move marks another stepping stone in the start-up’s drive toward new mobility options beyond car-hailing. It recently went through rebranding, changing its name to Bolt, which is the same name it used for the Paris scooter service.
It also mirrors Uber’s aim to become a one-stop shop for mobility. The ride-hailing giant made its own push into the e-scooter market last year following the acquisition of bike – Bolt is also looking to branch out into another key area for Uber – food delivery. It recently announced plans to launch a competitor to Uber Eats in Estonia, Finland and South Africa this summer.
As it pushes toward a renewed focus on growth, Bolt is seeking to raise an additional round of funding from investors. It recently hired a new finance chief, former Spotify SPOT executive Johan Bergqvist, who will be tasked with overseeing fundraising efforts at the firm.
The company hasn’t disclosed how much it’s looking to raise, nor who the investors will be. Bolt’s last big investment – which it secured last year when it was still known as Taxify – saw it raise $175 million at a $1 billion valuation.
The company is backed by Chinese ride-hailing giant Didi Chuxing and German automaker Daimler DAI-DE, which itself owns a taxi hire application called My Taxi.
E-scooter craze
The dockless e-scooter market has seen massive interest form investors, with serious cash being pumped into the likes of Lime and Bird.
Lime recently closed a $310 million funding deal that values the firm at $2.4 billion, while Bird last year raised $300 million at a $2 billion valuation – the latter is also reportedly in talks to raise a further $300 million.
But the battery-powered devices have seen some regulatory pushback in a number of cities, amid complaints that they are being ridden illegally on sidewalks and dumped in inappropriate places.
San Francisco temporarily banned them last year, before granting permits to some start-ups in the space to let them resume operations. But Lime, Bird and Uber were refused licenses by the local authority.
Madrid and Paris, meanwhile, banned e-scooters from sidewalks last year, while Spain’s capital also banned three operators, including Lime, for failing to comply with its rules. Madrid’s city hall later restored Lime’s ability to operate, while Bolt and Jump were also granted permits.
KEY POINTS
* Estonian ride-hailing start-up Bolt has raised $713 million in fresh funding to push into the rapidly growing online grocery delivery industry.
* The new investment round values Bolt at about $4.75 billion, more than double its last private valuation of $2 billion.
* The Uber rival is branching out into new services like food delivery, electric scooter and bike rentals in a bid to become a “super app.”

Economic Times
“Bolt, a rival of Uber’s ride-sharing and food delivery business, last raised funding in August at a valuation of more than €4 billion.
The company also offers electric scooter rentals, car-sharing and a 15-minute grocery delivery service, catering to over 100 million customers in 45 countries and over 400 cities across Europe and Africa.
“We are expanding all the five product lines extremely quickly, developing product R&D and rolling out in new cities,” chief executive Markus Villig told Reuters in an interview.
While Uber is the biggest rival for ride-hailing, Bolt faces competitors in food delivery including Just Eat Takeaway.com and DoorDash, which entered Europe via a $8 billion purchase of Wolt.
To gain customers, platforms often offer discounts leading to price wars in some markets.
“In many cases, we have been the driving force that actually lowers prices for consumers, so from day one, we were really focused on being frugal,” Villig said.
“We have been offering substantially lower prices than anybody else in the industry … we expect this to continue.”
Economic Times
“Uber rival Bolt raises $711 million at valuation of over $8 billion
Synopsis
While Uber is the biggest rival for ride-hailing, Bolt faces competitors in food delivery including Just Eat Takeaway.com and DoorDash, which entered Europe via a $8 billion purchase of Wolt.

Stockholm: Estonian startup Bolt said on Tuesday it had raised €628 million ($711.40 million) from investors led by Sequoia Capital and Fidelity Management and Research Co, taking its valuation to €7.4 billion ($8.38 billion).”
16. Controverting the submissions which were addressed on facts, the respondents asserted that the appellant was essentially engaged in the business of taxi ride-hailing and that its extension into the arena of EV charging docks was restricted to only a few countries and, in any case, could not be regarded as being substantial so as to satisfy the tests as enunciated in relation to transborder or worldwide reputation. It was further urged by the respondents that the EV charging docks which were ultimately installed by the appellant themselves appeared to be restricted to the charging of its own electric scooters.
17. The respondents further averred that it has been acknowledged by the appellant that the respondent was incorporated in February 2020 and that notwithstanding the extension of EV charging dock services, at least till February 2020 and as per the own showing of the appellant it did not have a single EV charging point even for its own scooters anywhere in the world.
18. The defendant while asserting the right of prior use and adoption had referred to the following salient facts which stand encapsulated in paragraph 21 of the impugned judgment: –
“21. Mr Lall further submits that, in para 26 of the plaint, the Plaintiff has acknowledged that the defendant was “incorporated in India in February 2020 and carries on the business, inter alia, of charging points for Electric Vehicles (EVs).” In February 2020, submits Mr Lall, the plaintiff did not have a single EV charging point, even for its own scooters, anywhere in the world. Thus, he submits, the defendant enjoys priority of user vis-à-vis the plaintiff even in respect of EV charging stations. Though the defendant had applied for registration of its and trade marks on 30th August 2021 on “proposed to be used” basis, Mr Lall submits that, as
(i) since 2018, Defendant 2 had adopted the mark ‘BOLT’ for EV chargers,
(ii) by 2nd October 2020, Defendant 2 had introduced ‘BOLT’ to the public at large by uploading public posts on social media platforms like YouTube and Instagram,
(iii) on 16th October 2020, Defendant 2 uploaded yet another public post revealing further features of its BOLT EV chargers,
(iv) as such, when Defendant 2 had conceptualized and adopted ‘BOLT’, the plaintiff had not even been rebranded as ‘BOLT’, and
(v) even if, therefore, it were to be assumed that the plaintiff had introduced ‘BOLT’ charging docks on 13th October 2021, the plaintiff had priority of user dating back to 2nd October 2020.
Mr Lall referred me to screenshots of the relevant social media posts of the defendant, which vouchsafe these assertions.”

The respondent thus claimed that it was the first in the market insofar as EV charging stations are concerned and thus no injunction being liable to be granted.
19. Controverting the assertions with respect to transborder reputation, the respondent averred before the learned Single Judge that for the purposes of maintaining an action based on the principles of passing off, it was imperative for the appellant to have established that it had a goodwill and reputation in India. It was submitted in this respect that the appellant had woefully failed to establish a significant presence in India, a sizable consumer base and that even the cited newspaper articles did not establish a ubiquitous presence and use of the trademark in India.
20. While dealing with the issue of transborder reputation, the learned Single judge has come to record the following conclusions:-
“36. Passing off and trans border reputation
36.1 Where the plaintiff is dealing in goods or providing services, under its mark, within the territory in which the defendant is alleged to have, by adopting a deceptively similar mark, passed off its goods or services as those of the plaintiff, identification of whether the necessary ingredients of passing of do, or do not, exist, is a simpler exercise. Where, however, as in the present case, the plaintiff has no business, whatsoever, in India, matters become complex. Passing off being a tort of capitalization, by the defendant, of the goodwill and reputation earned by the plaintiff, it has to be established that the plaintiff has goodwill and reputation in India.
36.2 Here again, where the plaintiff, though situated abroad, carries on business within the territory of India, or has some business exposure within India, the exercise of examining whether the plaintiff has the requisite goodwill or reputation in India is simplified. We are, however, faced with a situation in which, admittedly, the plaintiff carries on no commercial activity, whatsoever, within the territory of India. The activities in which the plaintiff is engaged are not, even to the most infinitesimal degree, carried out within Indian borders.
36.3 Even in such a situation, however, the possibility of the defendant, situated in India, passing off its goods and services as those of the plaintiff is not entirely ruled out, for the simple reason that the plaintiff, even if situated and carrying out its business activities abroad, may, at any time, decide to expand, or diversify, to India. A consumer of average intelligence and imperfect recollection, who comes across the defendant operating under the mark of the foreign plaintiff, or under a deceptively similar mark, may well presume that the defendant has decided to enter the Indian commercial firmament. Were this to be established, the defendant might still be found guilty of passing off its goods or services as those of the plaintiff, though the plaintiff is entirely situated abroad and has, till date, no commercial existence in India.
36.4 By plain logic, however, in such a case, the plaintiff would have to show that its goodwill and reputation, though garnered abroad, is so considerable that it has spilled over to India. In other words, the plaintiff would have to establish (i) that it has trans-border reputation, i.e. reputation which extends beyond the regions in which it has commercial existence, (ii) that the trans border reputation has extended to India and (iii) that the “spillage” is so considerable as to confuse or deceive a customer of average intelligence and imperfect recollection into believing that the goods or services of the defendant are those of the plaintiff.”
21. After exhaustively referring to the various decisions rendered on that subject, the learned Single Judge culled out the following principles as constituting the determinative criteria for the purposes of answering the question of cross border reputation:-
“36.8.7 Several important principles emerge from these passages, which may be enumerated as under:
(i) The territoriality principle applies; not the universality doctrine. Existence of goodwill and reputation has, therefore, to be shown to exist in India. Universal or worldwide goodwill and reputation, sans any evidence of territorial goodwill and reputation, is not sufficient.
(ii) Mere reputation is not enough. The claimant/plaintiff must show that it has significant goodwill.
(iii) The actual existence of an office of the plaintiff in the country of the defendant is not necessary.
(iv) However, the claimant must have customers within the country of the defendant, as opposed to persons in the defendant’s country who are customers elsewhere. Thus, where the claimant’s business is carried on abroad, it is not enough for the claimant to show that there are people in the defendant’s country who happen to be its customers when they are abroad.
(vi) However, it would be enough if the claimant could show that there were people in the defendant’s country who, by booking with, or purchasing from an entity in the defendant’s country, obtained the right to receive the claimant’s service abroad. The person from whom such booking or purchase took place could be the claimant, or its branch office, or someone acting for or on behalf of the claimant.
(vii) The claimant must be “present through its mark in the territorial jurisdiction” of the country of the defendant, though the existence of a “real market” was not necessary.
(viii) Such presence could, for instance, be shown by extensive advertisements which had been circulated and seen, or read, in the country of the defendant.
(ix) Once the existence of trans border reputation and goodwill was thus established, the claimant was not required, further, to prove the existence of actual confusion. The likelihood of the customer of average intelligence and imperfect recollection being confused, by the use of the impugned mark of the defendant, that the goods or services of the defendant were those of the claimant-plaintiff, was sufficient.”
22. Proceeding to deal with the merits of the claim as laid by the plaintiff on facts, the learned Single Judge has ultimately recorded the following findings: –
“37. Applying the above principles
37.1 Applying these principles to the facts of the present case, I am unable to hold the plaintiff entitled to injunctive relief, against the defendant, as sought. The plaintiff has not, in my opinion – despite the commendable efforts of Ms Sukumar to convince me otherwise – been able to cross the Toyota5 trans-border threshold of goodwill and reputation. I say so, for the following reasons:
(i) In support of her contention that the plaintiff’s trans border reputation had spilled over into India, Ms Sukumar cited
(a) articles in the CNBC and the Economic Times,
(b) the downloading, by Indian users, of the plaintiff’s mobile App 2 lakh times, and
(c) the results of a survey conducted among drivers in Ahmedabad, Pune, Surat, Chennai and Kolkata, which disclosed the number of times the plaintiff’s website was accessed by them.
(ii) The CNBC article (reproduced in para 10 supra) reported that
(a) the plaintiff was launching its electric kick scooter-sharing service in Madrid, following a roll-out the previous year in Paris,
(b) this marked a stepping stone in the plaintiff’s move towards new mobility options besides car hailing,
(c) the electric scooter craze looked set to gain further ground in Europe,
(d) the plaintiff was promoting the advantages of electric scooters as a viable option to beat traffic, when compared to cars,
(e) the plaintiff was also seeking to branch out into food delivery, electric scooter and bike rentals, so as to become a “super app”,
(f) for these expansions, the plaintiff was inviting investments from investors, and
(g) the plaintiff was backed by the Chinese and German “giants” Didi Chuxing and Daimler DAI-DE, which itself owned a taxi hire application My Taxi.
(iii) The Economic Times article, for its part, reported that
(a) the plaintiff was a rival of Uber’s ride sharing and food delivery business,
(b) Bolt also offered electric scooter rentals, car sharing and a 15-minute grocery delivery service,
(c) these services catered to 100 million customers in 45 countries and over 400 cities across Europe and Africa,
(d) the plaintiff faced competition in food delivery from, inter alia, Just Eat, Takeaway.com and DoorDash, which had also largely entered Europe, and
(e) to gain customers, platforms offered attractive discounts, leading to price wars, and the plaintiff claimed to be offering its services at lower prices than others.
(iv) Neither of these articles, therefore, made even an oblique reference to the plaintiff entering the EV charging business. Regarding EV charging as “allied” to electric scooter-sharing services would, in my view, stretching the concept of allied goods and services a notch too far. The import of these articles is clear and obvious. The plaintiff was, till then, engaged in providing taxi hailing services. It had, a year earlier, ventured into the electric scooter sharing field, in Paris. It was seeking to branch out into other cities in Europe and Africa. There is nothing to indicate that it was either engaged in providing EV charging services, or making EV charging points, or intending to do so any time in the foreseeable future. More significantly, these articles do not suggest, even obliquely, that the plaintiff was expanding its activities to India or, for that matter, even to Asia. It cannot, therefore, be held, on the basis of these articles, that an average customer in India, who would read them, would believe that the plaintiff was venturing into the Indian market with EV charging solutions.
(v) The defendant had not sought to contend, anywhere, that it was engaged, commercially, in the activity of EV charging stations, or in providing EV charging services. In fact, in para 12 of the plaint, as Mr Chander Lall correctly points out, the plaintiff has acknowledged that “consumers have become accustomed to understanding that the trademark BOLT is a commercial sign of origin specifically for mobility, transportation and delivery goods and services”. There is no reference, here, to providing EV charging services.
(vi) The limited reference to EV charging stations installed by the plaintiff 34, is of charging docks installed by the plaintiff in Tallinn and Estonia, with plans to install further docks in Lithuania and Portugal, for charging the plaintiff’s electric scooters. I am, prima facie, in agreement with Mr Lall that the mere fact that the plaintiff, otherwise engaged in providing taxi-hailing services and intending to expand into the electric scooter sharing business, was installing charging docks to charge its scooters in Tallinn, Estonia, Lithuania and Portugal, could hardly make out a case even for inferring the existence of trans border reputation, in the plaintiff, in the commercial EV charging segment, much less of permeation of such trans border reputation into India.
(vii) The number of times the plaintiff’s App has been downloaded in India, or its website accessed by drivers, cannot, in my prima facie view, make out a case of spillover of trans border reputation of the plaintiff, in the EV charging market, into India, even if, arguendo, EV charging were to be regarded as an activity allied to electric scooter sharing. Toyota5 is clear in requiring that, even if the plaintiff has no market in India, it would be required to show that its goods or services were purchased, or availed, by customers in India through the plaintiff, its branch, or its agents. The plaintiff’s App cannot substitute as an agent of the plaintiff, especially as the App can be downloaded anywhere in the world.
(viii) Equally, Toyota5 also approves the view, in Starbucks11, that the existence of customers in the defendant’s country, who would avail the services of the plaintiff abroad, cannot make out a case of permeation of trans border reputation. Ms Sukumar acknowledges that, even if persons in India were to download the plaintiff’s App, no services of the plaintiff could be availed thereby in India, and that the purpose of such downloading would only be to avail the plaintiff’s services abroad. The limited downloading of the plaintiff’s App by persons who may be travelling abroad to countries where the plaintiff’s services are available cannot, prima facie, be regarded as any sign of spillover of the plaintiff’s reputation into India, much less in the EV charging arena.
(ix) The “driver survey”, to which Ms. Sukumar drew attention, tells us precious little. All that is presented is a tabular statement of drivers in five cities. This statement is supposed to reflect the number of times the plaintiff’s website was accessed by the drivers. Whether it does, or not, is anybody’s guess; at the very least, it is a matter which would have to suffer trial even for a prima facie view to be ventured thereon. Even if it does, the purpose of accessing the website is unknown. Nor can the Court hold that the mere accessing of the plaintiff’s website in this fashion justifies a finding, even prima facie, of permeation of the reputation of the plaintiff into India, far less in the field of EV charging, which alone the defendant is engaged in.
(x) As in the case of Toyota5, in the present case too, the evidence and material cited by Ms Sukumar, even view cumulatively, do not constitute sufficient spillover, into India, of the trans border reputation, if any, possessed by the plaintiff with respect to the use of the mark as would justify injuncting the defendant from using the impugned mark for EV charging stations.
(xi) Though Ms Sukumar, in rejoinder, ventured a submission that, even in the absence of spillover of trans border reputation, mere intent, on the part of the plaintiff, to enter the Indian market would be sufficient, the submission cannot, prima facie, merit acceptance. It would, moreover, fly directly in the face of the principles enunciated so authoritatively by the Supreme Court in Toyota5. Passing off is, at all times, a tort the commission of which involves an element of confusion or deception, and the confusion or deception must be suffered by the mythical customer who chances on the defendant’s mark. For this, the awareness, by such customer, of the reputation of the plaintiff, is an indispensable sine qua non. Intent of the plaintiff to venture into the Indian market space cannot, therefore, substitute the necessity of spillover of trans border reputation.
(xii) For the same reason, the fact that the plaintiff may have applied for obtaining trade mark registrations in India can have no impact on the issue in controversy. The customer in India is unaware of the number of applications submitted by the plaintiff for registration of its mark.”
It is the aforesaid reasons which ultimately weighed upon the learned Single Judge to deny the prayer for ad interim relief.
23. For the purposes of examining the case that was set out before the learned Single Judge insofar as transborder reputation is concerned, it would be appropriate to refer to the following facts which were placed by the appellant. The appellant had apart from the revenue which was earned by it from its taxi hailing and cognate services had also additionally relied upon certain articles which appeared in Indian publications. Those publications pertained to the ride hailing services being provided by the appellant and of its assertion of slowly emerging as a worthy rival of Uber. The articles also alluded to its foray in the e-scooter market and the large investments which were garnered by it upon entities recognizing it to have achieved a status of significance in the ride sharing industry across the globe.
24. Before the learned Single Judge, the appellant also appears to have referred to the large imprint of its trade name across various social media platforms and additionally relied upon approximately 96,100 reviews of its BOLT mobile app on the Apple App Store and the 28,70.000 reviews on Google’s Play Store. It also relied upon the two lakh downloads of its app by users in India.
25. From the note which has been submitted for our consideration, we further find that the appellant is stated to have run advertising campaigns in February, 2020 across various Indian cities including Ahmedabad, Pune, Surat, Chennai and Kolkata on its mobile app targeting over 30 lakh customers in India. The aforesaid campaign which was carried on the appellant’s mobile app was spearheaded by the slogan “Bolt ?s India”.
26. Speaking specifically of EV charging stations, reliance was principally placed on newspaper articles and blog posts which appeared in October 2021 and referred to the establishment of various EV charging stations in Tallinn, Estonia and the intent of the appellant to install similar charging points in Lithuania, Portugal and other European countries. It is, however, significant to note that the charging docks which were launched by the appellant appear to be principally aimed as an attempt to service its electric scooters which were available on a sharing basis.
27. In contrast to the above, the respondent had asserted that it had adopted the mark “BOLT” for EV Chargers way back in 2018. Reliance also appears to have been placed on various posts which appeared on social media platforms such as YouTube and Instagram in October, 2020 evidencing the intent of the respondent of launching its service of charging docks in the near future. The aforesaid posts were followed up by uploads on social media platforms revealing further features of BOLT EV chargers. The respondents thus claimed a priority of user dating back to 02 October 2020. They also refer to the establishment of 10,000 EV chargers across 60 Indian cities by 2021.
28. The respondents have also provided details of its charging network which according to them spans hundred cities across India existing at more than 13,000 locations with 2500 charging points existing in the Delhi NCR region alone. The respondent has also referred to the significant revenue expenditure incurred by it in connection with promotion and publication of the brand name “BOLT”, as well as newspaper articles which were carried in leading periodicals in India. It is on the aforesaid factual basis that the case appears to have proceeded before the learned Single Judge.
29. Appearing for the appellant, Mr. Sibal, learned senior counsel addressed the following submissions urged for our consideration. Mr. Sibal firstly referred to the establishment of the appellant company itself way back in 2013 and the adoption of the mark “BOLT” as early as 2018 in connection with electric bikes and scooters. We were informed that as of 2022, the appellant was providing services in 400 cities spread across 45 countries and catering to as many as a 100 million customers. Mr. Sibal laid emphasis on the respondent having applied for trademark registration only on 30 August 2021 on a proposed to be used basis and thus at least two years after the appellant had acquired Unicorn status in 2019. It was also asserted that the respondent had failed to produce any evidence which may have established the launch of its EV charging docks under the mark “BOLT” prior to October 2021.
30. According to Mr. Sibal, the learned Single Judge had clearly erred in failing to notice the ubiquitous presence of the appellant across the globe in the mobility and e-scooter sharing industry and which was sufficiently evidenced from the compendious material which had been placed on the record.
31. Mr. Sibal submitted that the appellant had successfully established before the learned Single Judge that the appellant’s trademark essentially represented an entity which had established a service which constituted a “one stop shop” for mobility, ride hailing, e- scooters and e bikes. It was urged by Mr. Sibal that the material placed on the record before the learned Judge would indubitably establish that the appellant was the first in the world market insofar as electric vehicles are concerned.
32. According to Mr. Sibal, for the purposes of grant of injunction, it was neither imperative nor incumbent upon the appellant to have established that it was the first in the market with respect to EV chargers. It was his submission that charging docks are allied and cognate services and would go hand in hand with electric vehicles.
33. According to learned senior counsel, the learned Single Judge clearly erred in failing to appreciate that the adoption and use of the mark “BOLT” by the respondent would have a serious impact and cause immense prejudice to the service of EV charging stations as provided by the appellant. The submission, in essence, was that charging docks was a service complimentary to the fleet of electric vehicles which are provided by the appellant to its customers across the globe.
34. Mr. Sibal further contended that the learned Single Judge committed a manifest error in failing to notice the well-settled principle that an action for passing off is not liable to be restricted to actions taken up to the date of the proceedings but would also have to be tested having regard to the manner in which the business may be carried on in the future. Mr. Sibal in this regard relied upon the following passage as appearing in the decision of the Supreme Court in Laxmikant V. Patel v. Chetanbhai Shah3:-
“8. It is common in trade and business for a trader or a businessman to adopt a name and/or mark under which he would carry on his trade or business. According to Kerly (Law of Trade Marks and Trade Names, 12th Edn., para 16.49), the name under which a business trades will almost always be a trade mark (or if the business provides services, a service mark, or both). Independently of questions of trade or service mark, however, the name of a business (a trading business or any other) will normally have attached to it a goodwill that the courts will protect. An action for passing-off will then lie wherever the defendant company’s name, or its intended name, is calculated to deceive, and so to divert business from the plaintiff, or to occasion a confusion between the two businesses. If this is not made out there is no case. The ground is not to be limited to the date of the proceedings; the court will have regard to the way in which the business may be carried on in the future, and to its not being carried on precisely as carried on at the date of the proceedings. Where there is probability of confusion in business, an injunction will be granted even though the defendants adopted the name innocently.”
35. Mr. Sibal also sought to draw sustenance from the decision rendered in Sona Blw Precision Forgings Ltd v. Sonae EV Private Limited4 and which according to him was a binding authority with respect to the EV charging sector constituting a single segment and accepting the principle of allied/cognate goods or services as enunciated by Courts while considering the similarity of goods offered by businesses and the likelihood of confusion.
36. Mr. Sibal laid emphasis on the following observations as appearing in that decision: –
“31. Whether the goods offered by the plaintiff and the defendant are similar: It is the contention of the defendant that the products in which the plaintiff and the defendant deal are distinct, the consumers are not similar and there is no likelihood of there being any confusion or deception being caused by the use of the impugned mark by the defendant. However, it is not denied by the defendant that the plaintiff is manufacturing/selling/dealing in the components of electric vehicles, including the electric motors/controllers, and starters etc. for use in all passengers and commercial vehicles, including EV. This Court, in FDC Limited v. Docusuggest Healthcare, 2017 SCC OnLine Del 6381 has considered in detail the concept of ‘allied/cognate goods or services’, and has held as follows:
“51. …… Allied/cognate goods or services, as understood from the material referred to below, are those goods/services which are not identical, but can be said to be related or similar in nature (See McCarthy on Trademarks and Unfair Competition, Fourth Edition, Vol 5). The Shorter Oxford English Dictionary on Historical Principles Fifth Edition 2002, Vol. 1. defines the term “Allied” as “connected by nature or qualities; having affinity” and the term “Cognate” as “akin in origin, nature or quality”. Reference may also be made to New Webster’s Dictionary and Thesaurus of the English Language, 1992 which defines “Allied” as “relating in subject or kind” and “Cognate” as “1. adj. having a common ancestor or origin (of languages or words) having a common source or root (of subjects etc.) related, naturally grouped together.”. Cognate goods/services can be described, inter alia, as goods or services which have a trade connection – as in glucose and biscuits (See Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142) or which are intended for the same class of customers – as in television picture tubes (parts thereof, video tapes and cassettes and television tuners etc.) and televisions, tuners and TV Kits (See Prakash Industries Ltd. v. Rajan Enterprises (1994) 14 PTC 31), or are complementary to each other – as in toothbrushes and toothpaste (See HM Sariya v. Ajanta India Ltd. (2006) 33 PTC 4).
xxxx
53. Now, to determine whether the defendants’ services are allied and cognate to plaintiffs goods, it is essential to first discuss the law on similarity in goods/services in trademarks and its development so far. While the Act is silent on the factors to be considered for similarity in goods/services, the Courts in India – relying upon international cases and literature, have consolidated the guiding principles and factors found relevant in ascertaining the similarity between goods/services. They are as follows:
1. In Assam Roofing Ltd. v. JSB Cement LLP 2015 SCC OnLine Cal 6581, the learned Single Judge in Para 80 observes- “The test of similarity of goods is looked at from a business and commercial point of view. The nature and composition of the goods, the respective uses of the articles and the trade channels through which they are brought and sold all go into consideration in this context”.
(emphasis supplied)
2. In Kerly’s Law of Trade Marks and Trade Names, 15 Edition 2011, the learned Author in Para 9-073 has stated as under:—
“As para.23 of the decision in Canon v. MQM (1999) R.P.C. 117 makes clear, all factors relating to the goods or services themselves must be taken into account. These include, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. It is clear that goods in different classes may nevertheless be considered similar, and likewise that goods or services within the same class may be found to not be similar.”
(emphasis supplied)
3. In Para 9-075, the Learned Author has mentioned some illustrations on similar goods or services including under Para 9-078 “Services offered by beauty salons; solarium services” similar to “business assistance with beauty preparations, sales” and “beauty preparations, perfumery, cosmetics dietetic substances”. The said illustration sources from the case of Beauty Shop Application v. Opposition of Evora BV [1999] E.T.M.R. 20, wherein the Office for Harmonization in the Internal Market (Trade Marks and Designs) also known as the Opposition Division held the defendant’s services to be similar to the plaintiffs services and goods by observing that “the goods and services of the conflicting marks could be offered together and be intended for the same public.”
4. In British Sugar Plc. v. James Robertson & Sons Ltd. [1996] R.P.C. 281 at 294-297, relied upon in Balkrishna Hatcheries v. Nandos International Ltd. 2007 SCC OnLine Bom 449 and Advance Magazine Publishers, Inc. v. Just Lifestyle Pvt. Ltd. 2016 SCC OnLine Bom 8417, the court laid down the objective test for similarity of description of goods/services as follows:
(a) “The uses of the respective goods or services;
(b) The users of the respective goods or services;
(c) The physical nature of the goods or acts of service;
(d) The trade channels through which the goods or services reach the market;
(e) In the case of self-serve consumer items, where in practice they are respectively found or likely to be found in supermarkets and in particular whether they are, or are likely to be, found on the same or different shelves; and
(f) The extent to which the respective goods and services are in competition with each other : that inquiry may take into account how those in trade classify goods, for instance whether market research companies, who of course act for industry, put goods or services in the same or different sectors.”
5. Kerly 15 ed while relying upon Canon (supra), further observes in Para 9-065 that the element of distinctive character of a trademark and its reputation is also viewed when determining similarity between the goods and services and whether such similarity is sufficient to give rise to the likelihood of confusion.”
(Emphasis supplied)
32. Applying the test laid down in FDC (supra), it can be said that prima facie the plaintiffs and the defendant’s goods are allied/cognate goods, for the following reasons:
i) Respective uses of goods/services: The plaintiff deals with the manufacturing and assembling of electric motors, controllers, alternators and starter kits which form a part of the automobiles whereas the defendant deals in electric two-wheeler and charging stations EV;
ii) Intended purpose: The plaintiffs goods intend to provide a range of products for all passengers and commercial vehicles, including EV whereas the defendant is providing a service to public institutions by setting up charging stations for electric two-wheelers and eventually venture into EV itself.
iii) Respective users of goods/services: The customer portfolio of the plaintiff comprises of Global OEMs of EV, North American OEMs of passenger and commercial vehicles as well as Indian OEMs of passenger and commercial vehicles as also EV whereas the defendant being a pre-revenue startup, is bound to eventually overlap with the pre-existing customer base of the plaintiff.
iv) Sector : The plaintiff and the defendant are both part of the automobile industry making a niche in the EV segment.”
37. Proceeding then to the issue of transborder reputation, Mr. Sibal submitted that the appellant had been able to establish before the learned Single Judge that it met the tests as laid down in MAC Personal Care Pvt. Ltd. & Anr. v. Laverana GMBH and Co. KG & Anr.5 in support of its claim of transborder reputation. According to Mr. Sibal, for the purposes of the above, the appellant was enjoined to establish an international reputation and its spillover in India. Reference in this regard were made to the following passages as appearing in MAC Persona Carel: –
“13. But, with respect to the finding that the respondent has prima-facie not established a trans-border reputation, we find that the learned Single Judge has misapplied himself.
14. The concept of trans-border reputation has grown quite considerably through case law, which has been noted by the learned Single Judge, and the judgments referred to by the learned Single Judge have been noted by us in paragraph 7 above. We therefore need not rewrite the same. The concept of trans-border reputation essentially means that a plaintiff wishing to enforce its unregistered trademark in India need not necessarily have a commercial use in the Indian market in order to maintain an action for passing off. International reputation and renown may suffice if the same spills over to India.
15. Thus, there are two elements to the above, namely: –
(i) That there is an international reputation inuring in a trademark in favour of the plaintiff on account of use made overseas; and
(ii) The reputation spills over to India.
16. With the growth of the internet and the modern means of communication including radio, television and broadcasting, the second element is relatively easier to establish as compared to the position which existed even one decade ago. In fact, each new telecom technology (e.g. for 2G to 4G) increased band width enabling more and more to be achieved on say a hand-held cell phone. Therefore, standing anywhere within the country at any time pressing a few buttons, a person is able to view international trademarks with such ease that the spill over factor has become quite easy to establish.
17. But as regards the first element, of having a reputation in an international market, the question does arise as to the extent and magnitude of the reputation in order for it to be considered adequate to prima-facie satisfy the first condition of trans-border reputation; justifying the grant of an interim injunction pending trial.
18. In our opinion anything done at a commercial level should suffice to achieve the prima-facie satisfaction unless it can be called de minimis or trivial. Even if one is to assess in a rough way the amount or magnitude of the international reputation, there can be certain factors which assists in this process. If the trademark is registered in favour of the plaintiff in a jurisdiction abroad, said fact would demonstrate: –
(i) That the proprietor has declared to the world that the subject matter is its trademark;
(ii) That the declaration has been made in a public record open to inspection under the Trademark Laws of most jurisdictions; and
(iii) That in all probability, the Registering Authority of the registering country satisfied itself that the mark was distinctive and therefore, capable of distinguishing the Registrant’s Trademark from those of other traders.”
38. According to learned senior counsel, the fact that the appellant held trademark registrations in multiple jurisdictions would give rise to a strong presumption of international reputation. He reiterated the fact that the appellant had trademark registrations in over 85 countries as on August 2022. It was pointed out that Mac Personal Care had clearly accepted the aforesaid factor as being relevant for the purpose of evaluating a claim of transborder reputation. It was submitted further that Mac Personal Care assumes added significance as a consequence of it having taken cognizance of the march of technology and the impact of the internet on markets. According to Mr. Sibal, these aspects have clearly been overlooked by the learned Single Judge.
39. Mr. Sibal proceeding further contended that apart from an international reputation and goodwill, the appellant had also been able to establish its presence in India itself based upon the number of downloads of its mobile app, its advertising campaign and the steps taken by the appellant to advertise its trademark “BOLT” on the visual as well as the print media platforms. It was argued that the business of the appellant had received extensive publicity and which is evidenced from the numerous featured articles which appeared in leading newspapers and periodicals available in the country.
40. Mr. Sibal also sought to draw sustenance from the decision of the UK Supreme Court6 in Starbucks (HK) Ltd and Another v British Sky Broadcasting Group and Others7 and which had referred to the aspect of intent to launch in a country being sufficient to be countenanced while evaluating the issue of protectable goodwill. According to Mr. Sibal, the learned Single Judge also failed to bear in consideration similar principles which came to be propounded by the Supreme Court in Milmet Oftho Industries v. Allergan Inc.8.
41. It was then argued that the judgment suffers from apparent contradictions as would be evident from the following facts. Mr. Sibal contended that the learned Single Judge while noticing the CNBC article which had clearly mentioned the date of adoption of the mark by the appellant as 2018, it has still proceeded to hold that the appellant had been using the mark only since 2020. According to Mr. Sibal, the learned Single Judge has also misconstrued the CNBC article while holding that the appellant had a presence only in ride hailing services when in fact the said article had itself mentioned the presence of the appellant in the EV segment. According to Mr. Sibal, the learned Judge has also erred in holding that the appellant had established EV charging stations only in Tallinn, Estonia, and ignoring its widespread presence in various countries across the globe while providing a whole bouquet of mobility related services.
42. Mr. Sibal further argued that the action of the respondents clearly amounted to a dishonest adoption as would be manifest from the following facts. According to learned senior counsel, the respondents in their written statement clearly admit of having knowledge of the mark of the appellant prior to their adoption and this in itself being evidence of a dishonest adoption. Mr. Sibal argued that Mac Personal Care had clearly frowned upon commercial dishonesty and the said facet constituting an important factor to be taken into consideration for the purposes of grant of injunction. It was his submission that an innocent use of a mark would be protected only if it be found that the same has been used by two or more persons unknown to each other and unaware of the mark itself. In the facts of the present case Mr. Sibal contented that it is more than evident that the adoption of the mark by the respondent was neither honest nor bona fide.
43. Continuing along this thread, Mr. Sibal also referred to the admitted fact that the respondent had initially launched its services under the trade name “REVOS” and only thereafter adopted the word “BOLT” for their EV charging stations. To sustain the aforesaid allegation, our attention was invited to an article which appeared in India Today and is found at page 1787 of our digital record.
44. Mr. Sibal further questioned the correctness of the view expressed by the learned Single Judge where it was held that a physical or commercial presence within the territory would be relevant for the purposes of answering the question of transborder reputation. According to learned senior counsel, the aforesaid observations clearly run contrary to the principles which came to be laid down in MAC Personal Care and find resonance even in the decision of Supreme Court in Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd9.
45. Appearing for the respondents. Mr. Wadhwa, learned senior counsel firstly urged that although the plaintiff / appellant claims to have conceived and adopted the mark “BOLT” in 2018 and consolidated their operations under that mark sometime in 2019, the plaint fails to place any material particulars in this respect on the record.
46. According to Mr. Wadhwa, a general global reputation without any reference to reputation of goods and goodwill in India would be wholly insufficient for the purposes of answering the issue of transborder reputation.
47. Quite apart from the above, it was his submission that even on the material that was placed on the record, it cannot possibly be held that the appellant had a significant presence in India. It was in this regard further urged that the plaintiff / appellant failed to disclose appropriate particulars with respect to when it commenced its EV charging business and operations anywhere in the world. Mr. Wadhwa highlighted the fact that all that is averred in this respect is the establishment of EV charging docks in Tallinn, Estonia and the intent of the appellant to install similar charging docks in Lithuania and Portugal.
48. It was also his submission that the argument of allied or cognate services was one which was raised for the first time only in the replication. He took exception to the introduction of new facts and material by way of a replication in a purported attempt to establish the plaintiff’s goodwill and reputation in India.
49. It was further urged by Mr. Wadhwa that a comparison of the marks of the appellant and respondents would itself establish that the latter mark would not satisfy the likelihood of confusion test. Mr. Wadhwa referred to the following pictorial comparison between the two products: –

50. Mr. Wadhwa further argued that the word “BOLT” is generic and is in use by various reputed organizations whose businesses straddle various sectors. It was submitted that the word “BOLT” has been adopted by Micromax (for phones), Bombay Stock Exchange (for computer software), Hyundai (for buses, cars and trucks), TATA (for vehicles), TVS (for tires and tubes) etc. According to Mr. Wadhwa, a search on the website of the Ministry of Corporate Affairs itself would establish that as many as 103 companies are registered with BOLT forming part of a corporate name. Reference in this regard was also made to the launch of cars by both Tata and Chevrolet with the name “BOLT”.
51. Mr. Wadhwa contended that the word “BOLT” along with a symbol of a thunderbolt together connote and seek to convey speed and lightning, both of which are concepts commonly used as part of visual representation strategies. This, according to learned senior counsel, would be evident from a bare perusal of the table which stands placed with paragraph 51 of the written statement. It was submitted that the respondent intended to highlight the swift charging of batteries capability of its chargers and that led to the adoption of the word and the device marks which presently appear on its charging stations.
52. It was further contended by the respondents that in all fairness and in deference to the statement made before the Court on 23 November 2022, it had already changed its name and mark to BOLT.EARTH and it is this arrangement which has been continued. It was submitted that it was the unjustified objections taken by the appellant which compelled the respondent to alter its name to BOLT.EARTH. According to Mr. Wadhwa, in terms of the undertaking as proffered before the learned Single Judge, the respondents have taken appropriate remedial steps and are bound to do so during the pendency of the proceedings in the suit. The Court was also referred to the affidavit of compliance which has been filed in this respect.
53. Proceeding to address submissions on the issue of adoption, Mr. Wadhwa pointed out that the appellants expressed its intent to adopt the word “BOLT” for the first time in October 2020 as would be evident from the content which was uploaded on YouTube. The learned senior counsel also referred to the various invoices which came to be generated in the course of sale of the REVOS BOLT chargers dating back to November 2020. These invoices appear at page 1909 to 1911 of our record.
54. Mr. Wadhwa submitted that as on 08 January 2021, the respondent had established more than 100 charging stations and was proceeding at a pace of 3 installations per day. It was further contended that the India Today article dated 26 October 2021 itself notes that in the pre-launch phase, numerous BOLT charging points had already been installed across 60 cities in India with an installed capacity of over 3600 kW.
55. According to Mr. Wadhwa, all of the above would clearly establish that by October 2021, the respondent had gained substantial goodwill across the country in contrast to the appellant having merely installed some charging docks in Tallinn, Estonia alone at this time. By March 2022, Mr. Wadhwa pointed out, the respondent had achieved the milestone of 10,000 EV charging stations across India and which feat was widely reported in various newspapers in the country. Mr. Wadhwa also referred to the mention of the respondent in the annual India EV Report Card FY 2021-2022 and evidencing the installation of 11,200 charging points in the country and representing the highest penetration reached by any service provider.
56. In contrast to the above, according to Mr. Wadhwa, the appellant has not only failed to establish goodwill or reputation in India, it had also miserably failed to establish goodwill in the EV charging space itself. According to learned senior counsel, the case of the appellant insofar as the EV charging segment is concerned is based solely on certain news articles and downloads of its mobile app by a minuscule number of Indian users.
57. Insofar as those newspaper articles are concerned, it was pointed out by Mr. Wadhwa that the appellant refers merely to two stray mentions in Indian newspapers and which too appeared at a gap of almost three years in between.
58. Proceeding then to counter the data which was sought to be relied upon by the appellant to buttress its case of reputation and goodwill in India, it was submitted by Mr. Wadhwa that the download data relates to the period January, 2017 to May, 2022, when in fact the appellant rebranded to BOLT only around 2018-2019. It was further submitted that the downloads between 2019 to October 2020 are negligible at the most and thus cannot possibly be read as cogent evidence of reputation and goodwill in the country.
59. It was further argued by Mr. Wadhwa that undisputedly, the appellant provides no services in India and in any event the downloads by Indian users is only to avail of services outside. According to Mr. Wadhwa, the driver campaign is also wholly immaterial when one bears in mind that the same was published in five cities of India during February 2020 to May 2020 and thus constituting a one-time exercise. It was further contended that the aforesaid advertising campaign is in any case of little relevance when one bears in mind the fact that it was rolled out during a time when the COVID pandemic was raging across the country.
60. Mr. Wadhwa also questioned the submission of allied and cognate services which was commended for our consideration by Mr. Sibal and argued that the fuel or the power on which a vehicle may run cannot possibly be viewed or accepted as being allied or cognate to the vehicle itself. It was his submission further that the fuel factor of a vehicle is in any case wholly irrelevant when viewed in the context of a platform merely aimed at aggregation of vehicles.
61. Mr. Wadhwa underlined the fact that the fuel/power as contrasted to a vehicle constitute two distinct and separate services, have completely different trade channels and constitute separate sectors itself. According to Mr. Wadhwa, it would be preposterous to recognize petrol pumps, diesel pumps, CNG pumps as a segment which could be said to be allied or cognate to the automobile sector.
62. In any case, according to learned senior counsel, and as per the case of the appellant itself, it principally remains to be a right aggregator as opposed to an industry leader in the field of EV charging. Mr. Wadhwa also sought to distinguish the judgment of Sona Blw Precision Forgings Ltd, pointing out that the plaintiff therein was engaged in the manufacture and assembly of electric motors and the defendant there dealing in electric two-wheelers. According to learned senior counsel, it was in the aforesaid context that the learned Judge held in favor of the plaintiff and answered the issue of allied and cognate goods in the affirmative. According to Mr. Wadhwa, the claim as set forth by the appellant is in any case liable to be negated when tested on the principles enunciated by the Supreme Court in Toyota.
63. Mr. Wadhwa also placed reliance on the judgement of Keller Williams Realty Vs Dingle Buildcons Pvt. Ltd.10, wherein in the context of transborder reputation, after considering Toyota, the Supreme Court had held that real estate brokerage services are not allied/cognate to real estate development services. The relevant observations in this regard are reproduced below:-
“12. I have considered the rival contentions, only for the purposes of the application for interim relief, and am of the opinion that the plaintiff is not entitled to any interim relief for the following reasons:
(A) Though, the Supreme Court in Neon Laboratories Ltd. supra and in Milmet Oftho Industri