Delhi High Court: In a case wherein dispute arose relating to marks, being “THEOBROMA” and “THEOS”/“THEO’S”, used in respect of bakery related products, patisseries, confectionery, etc., Prathiba M. Singh, J.*, dictated the terms of the settlement for the issues in dispute and the parties further agreed to abide by the same, hence bringing the dispute to a conclusion.


Plaintiffs 1 and 2 being Theos Food (P) Ltd., also known as Theos Patisserie & Chocolatarie (‘Theos’), were based out of Delhi and Noida and the defendants, Theobroma Foods (P) Ltd. (‘Theobroma’), was based out of Mumbai. The parties had earlier agreed to settle their disputes amicably but it was submitted by the counsels that the parties had been unable to file the settlement agreement due to certain areas of disputes that had arisen, however, both parties agreed that the suit could be decreed in terms of the judgment passed by the Court in THEOS Food (P) Ltd. v. THEOBROMA Foods (P) Ltd., 2022 SCC OnLine Del 2309. The areas of dispute were as under:

1. Use of the mark ‘THEOS’

The defendant had registered the mark ‘THEO’ and claimed that it should be using the mark ‘THEO’ without the `S’, and ought to be restricted from using the mark “THEOS” or “THEO’S”.

2.Geographical limitation on the use of the Mark

The registration of the plaintiff’s marks was restricted to the territory of Delhi-NCR region, and they claimed that this would create difficulties for the plaintiffs’ in enforcing their rights in the marks “THEOS”/ “THEO’S” as the plaintiffs’ might be unable to file oppositions or seek injunctions against use of the mark in other geographical territories within India.

3.Limitation as to International Classification of Goods and Services, NICE Agreement, (‘NICE’) Classification

The plaintiffs’ contended that the mark “THEO” which was registered in favour of the defendant should be restricted to class 30 and should not be permitted to be retained in other classes.

4. QR Menu Card

The senior counsel for the defendant submitted that usage for the mark “THEO” by the defendant should be permitted in respect of the five items, namely, (a) Theos Dutch Truffle Cake; (b) Theos Chocolate Mousse Cup; (c) Theos Mava Cake; (d) Theos Dense Loaf; and (e) Theos Quiche, in both physical and QR menu cards. The counsel for the plaintiffs’ submitted that the plaintiffs’ had no objection as long as the use was limited to QR menu cards as used in the physical outlet only, and not on food aggregator or food delivery platforms.

Analysis, Law, and Decision

The Court opined that there was no ambiguity, and the defendant could not be restricted from using the mark “THEOS”/“THEO’S”. As for the apprehensions raised in context with the geographical limitations, the Court clarified that the geographical restriction on registration or use of the mark “THEOS”/ “THEO’S” to the Delhi-NCR region would not affect the plaintiffs’ statutory and common law rights to file oppositions and to take action seeking injunctions against any misuse of identical or similar marks in any territory within India against any third party except the defendant and/or its authorised permissive users.

The Court decreed the suit in the following terms:

  1. ‘Theos’ recognised and acknowledged ‘Theobroma’ as the owner and proprietor of the mark ‘THEOBROMA’. ‘Theos’ had also agreed not to use the mark or name ‘THEOBROMA’ in any manner whatsoever, either in respect of any products of its manufacture, or sale, or any other services.

  2. Theobroma no longer objected to the use of the mark “THEOS”/“THEO’S” in respect of its goods and services, and also, as part of its trading style/name ‘Theos Food (P) Ltd.’ and ‘Theos Patisserie & Chocolaterie’, so long as Theos restricted its business activities to the Delhi-NCR region.

  3. Theobroma shall restrict use of the mark “THEOS”/”THEO’S” only for the names of the five food items offered by it, along with variants being egg/without egg and sizes.

  4. The usage of the mark shall only be in the physical/QR menu cards used at the physical outlets of Theobroma and shall not extend to online menu cards of Theobroma.

  5. Theos shall also not make any online sales outside Delhi-NCR region under the mark/name “THEOS”/ “THEO’S”. If it intended to extend its commercial activities outside the Delhi-NCR region, either in physical or in online mode, the same shall be done under a mark/name which was neither identical nor deceptively similar to “THEOBROMA”. Theos, however, was free to use a prefix or a suffix along with “THEOS”/ “THEO’S” for such expansion.

  6. Theobroma shall continue to retain all its trade mark registrations for “THEOBROMA” and its registered variants and derivatives, including “‘THEOS” and “THEO”, and be entitled to protect and take all enforcement-related steps and opposition-related actions to safeguard its rights in these names and marks.

  7. Theobroma was free to expand its outlets under the mark/name ‘THEOBROMA’ across the country. However, Theos shall be restrained to the Delhi-NCR region.

[Theos Food (P) Ltd. v. Theobroma Foods (P) Ltd., 2023 SCC OnLine Del 6077, decided on 25-09-2023]

*Judgement authored by – Prathiba M. Singh

Advocates who appeared in this case :

For the Plaintiffs: Mr. Kapil Wadhwa, Ms. Surya Rajappan, Mr. PDV Srikar, Advocates

For the Defendant: Mr. Rajshekhar Rao, Senior Advocate; Mr. Rahul Vidhani, Mr. Manoj K. Menda, Advocates; Ms. Kamal Messman (Director of defendant)

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