In the ongoing tussle between PhonePe and BharatPe over the alleged misuse of the term ‘Pe’, BharatPe has said that by withdrawing its injunction from the Bombay High Court PhonePe has given up its claim for exclusivity over the word by consent.

In the court order dated October 22, the Bombay High Court noted that PhonePe has no registration of the word ‘Pe’, instead it has a label with the devanagari word Pe. BusinessLine has reviewed a copy of the order.

“If the plaintiff (PhonePe) has no exclusivity over the mark ‘Pe’, I do not see how it can claim this exclusivity indirectly in paragraph after paragraph of the plaint. It is one thing to say that the defendants’ (BharatPe) mark, taken as a whole, is close to the PostPe, also taken as a whole.

“It is quite another to take an element of each, which cannot possibly be the subject of exclusivity, and then claim injunctions on that basis,” the court added.

‘An infringement’

PhonePe has claimed that while the word ‘Phone’ is not unique, the word ‘Pe’ is a distinctive and memorable part of its name. It then claimed that use of the word ‘Pe’ in BharatPe’s new ‘buy now pay later’ offering PostPe is an infringement.

In response to this, the court said that “if the law is that the mark must be taken as a whole, then one must look at PhonePe as a whole and then set it against PostPe. Then one would test for visual, structural and phonetic similarity.”

‘To file a fresh suit’

In a statement released by PhonePe last week, the company said that “to address certain observations made by the Court in the pleadings filed by PhonePe, the suit was withdrawn with liberty to file a fresh suit challenging the adoption of mark PostPe/postpe by Resilient Innovations. Accordingly, while allowing the withdrawal of the suit and keeping the rights and contentions of the parties open, the Hon’ble Court granted PhonePe the liberty to file a fresh suit. We will, accordingly, file a fresh suit and continue to ardently oppose the use of the PostPe/postpe marks.”

The PhonePe spokesperson had earlier also claimed that the “hon’ble Court observed that the mark PostPe adopted by Resilient Innovations is so phonetically, structurally and visually similar to PhonePe mark that he also thought that PostPe/postpe is a natural evolution of the word PhonePe and emanated from PhonePe.”

In an updated statement released by BharatPe on Monday, the company challenged the above statement by PhonePe and said: “We were rather surprised by the statements made by spokespersons of PhonePe on Friday on the outcome of Friday’s proceedings in the Bombay High Court, which did not reflect the correct outcome of the Friday’s proceedings in Court. We had earlier refrained from commenting on the order of the Hon’ble Bombay Court because the actual wording of the actual order would demonstrate how misleading PhonePe’s earlier statements to the press were.”

“We will bring such misconduct by PhonePe to the attention of the Hon’ble Bombay High Court as well. We are happy that BharatPe’s (Resilient’s) stand is again vindicated regarding its use of PE.

“We will continue to take all legal remedies in law, not only to defend ourselves against any ill-conceived actions taken by PhonePe, but also to protect our rights in law,” the BharatPe spokesperson added.

This is not the first legal tussle between BharatPe and PhonePe over trademark infringement. Earlier in 2019, PhonePe filed a case against BharatPe in the Delhi High Court over the alleged misuse of the suffix ‘Pe.’ Later, in April 2021, PhonePe’s plea to issue an injunction against BharatPe was rejected by the Delhi High Court. Following that, PhonePe appealed the Delhi High Court’s order, but later withdrew it in June.