4. Phonetic Distinction
Phonetic similarity must be assessed based on rhythm, stress, and overall articulation.
The Applicant's mark is pronounced:
ZES – TO – RA – BI – TES
The cited mark is pronounced:
ZES – TOR
The addition of the syllables "RA," "BI," and "TES" results in a longer enunciation, an altered syllabic cadence, and a substantially different sound pattern. The phonetic rhythm of "ZESTORA BITES" is flowing and three-dimensional. The sound of "ZESTOR" is sharp and abrupt — a single, closed-ending word with no continuation.
The Hon'ble Supreme Court has held that marks must be compared from the perspective of an average person with imperfect recollection and that phonetic differences assume importance in determining likelihood of confusion. Applying this principle, the phonetic distinction in the present case is clear and sufficient to negate confusion.
5. "BITES" as a Separate Distinctive Element
The Applicant's mark contains an additional second element — "BITES" — which is absent from the cited mark. Even if the shared prefix "ZEST" or "ZES" were considered common or non-distinctive, it is well-settled that common portions of a mark cannot be monopolised.
In the present case, the second element "BITES" — while descriptive of food services — creates a distinct compositional identity when combined with "ZESTORA." The mark as a whole, including the tagline, creates a brand impression that is materially different from the single-word cited mark. Greater weight must be given to the distinguishing features: the extended structure, the second element, and the composite tagline.
6. Effect of Addition of a Syllable and Second Element
It is settled law that the addition or alteration of even a single syllable may substantially change the identity of a word mark. The Delhi High Court has held that modification within the body of a word or the addition of an element is sufficient to distinguish two marks, and that structural dissimilarities in the core of a word negate deceptive similarity.
In the present case, the Applicant's mark differs from the cited mark not only by the suffix "ORA" appended to the first element, but also by an entirely separate second word "BITES" and a branded tagline. These are not trivial variations — they materially alter the phonetic, visual, and conceptual character of the mark.
7. Overall Commercial Impression and Trade Perception
The Applicant's mark is associated with premium fusion food, snacking, and restaurant services. The tagline — "A premium fusion snacking experience" — reinforces a distinct brand identity centred around quality and craft. The commercial positioning is upmarket, contemporary, and food-focused.
The cited single-word mark "ZESTOR" projects a fundamentally different commercial impression — compact, unmodified, without any additional brand narrative. Consumers encountering the Applicant's mark in a commercial context — on a menu, a storefront, packaging, or digital media — would receive a composite, layered brand impression that is entirely distinct from the brief, closed impression of "ZESTOR." The overall commercial impression test, which is the governing principle in trademark comparison, clearly favours the Applicant.
8. Absence of Likelihood of Confusion
For an objection under Section 11(1) to sustain, there must be a reasonable probability of confusion. In the present case:
- The spelling and length differ materially.
- The syllabic structure differs — 5 syllables versus 2.
- The phonetic cadence differs fundamentally.
- The overall visual appearance differs — composite versus single-word.
- The commercial positioning and brand narrative differ.
The resemblance, if any, is confined to the opening consonant cluster "ZES" — a non-distinctive, non-exclusive element. There is no evidence of actual confusion in the marketplace, nor is confusion probable when the marks are assessed in their totality by an average consumer exercising ordinary care.
9. Honest and Bonafide Adoption
The Applicant has independently and honestly adopted the mark "ZESTORA BITES." The mark is inherently distinctive as a coined composite expression and is capable of distinguishing the Applicant's goods and services from those of others. There is no intention to ride upon or derive benefit from any pre-existing mark. The Applicant's mark was adopted in good faith and with no knowledge of the cited mark at the time of adoption.
10. Conclusion
Upon holistic comparison and application of settled legal principles, it is evident that:
- The marks are not identical.
- They are not deceptively similar when compared as a whole.
- There exists no likelihood of confusion.
- The distinguishing features are substantial — both structurally and phonetically.
Accordingly, the objection under Section 11(1) is unsustainable and deserves to be withdrawn.
Prayer
In light of the above submissions, it is most respectfully prayed that this Hon'ble Registrar may be pleased to:
- Accept the present Reply to the Examination Report;
- Withdraw the objection raised under Section 11(1) of the Trade Marks Act, 1999; and
- Proceed to advertise Application No. 5892741 in the Trade Marks Journal.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL EVER PRAY.
Respectfully submitted,
For ZESTORA FOODS PRIVATE LIMITED
Through Counsel
Jose George
Attorney [XXXXX]