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Food, Fights, and the Butter Chicken: Some More Thoughts on “The Mystery of the Real Master Chef”

Republished By Plato
Republished By Plato

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An image of "butter chicken"
Image from here

Yesterday, Aparajita penned a post “Squawking over butter chicken: The mystery of the real master chef” sharing her thoughts on the existing “Who Invented Butter Chicken and Dal Makhani” issue before the Delhi High Court in Rupa Gujral & Ors vs Daryaganj Hospitality Private Limited. While she has raised several interesting points, there are a few more issues, especially concerning passing off, that I believe need highlighting. This post attempts to make sense of the media frenzy surrounding the issue, emphasizing its widespread misdescriptions. Plus, it tries to outline possibilities based on information available from the Trademark Registry, media sources, and the court order. 

Facts … as I understand from the order and the media coverage:

So … the plaintiffs have owned the “MOTI MAHAL” restaurant since the 1920s worldwide and their case is simple: their grandfather – the late Kundan Lal Gujral – who founded the restaurant in Peshawar (now in Pakistan) invented Dal Makhani and Butter Chicken. And during partition in 1947, they moved the restaurant to Delhi’s Daryaganj. They accused the Defendants of “misleading the public into believing that their “DARYAGANJ” restaurants are connected with the Plaintiffs’ predecessor’s first “MOTI MAHAL” restaurant in Daryaganj.” As per the order (para. 18), the plaintiffs substantiate this claim by alleging the defendants’ use of a picture of the plaintiff’s grandfather (Kundal Lal Gujral) on their Facebook page falsely representing him as their grandfather (Kundan Lal Jaggi). While the “misleading the public” claim hints at perhaps a trademark infringement and/or passing off claim, the order doesn’t clarify what rights are allegedly infringed. Bar and Bench (paywalled) reported that the case is not only concerned with the use of the above image but also the tagline “Inventors of Butter Chicken and Dal Makhani.” The Indian Express mentioned allegations of trademark infringement and passing off actions without clearly specifying on what grounds. However, perhaps some clarity emerges when it is noted that the plaintiffs seek “to restrain Daryaganj from claiming that their ‘predecessor’ invented the two dishes, as well as from using the tagline ‘by the inventors of butter chicken and dal makhani’ on their website, on social media platforms, and any print or electronic media.” 

Conversely, the defendants also asserted their claim to the culinary origins, while calling the plaintiffs’ suit “misconceived, baseless and lacking a cause of action.” They argued that the Moti Mahal restaurant was jointly established by their predecessor, Kundan Lal Jaggi, suggesting that they are equally the inventors of the said dishes. Regarding the photo evidence, they asserted it was not from the defendants’ Facebook page but from an unrelated entity – “A to Z Kitchen”. 

Now What? …. What’s Next?

Sadly, the lip-smacking tendencies associated with these dishes seem to have seeped into the reporting of the case as well, leading to a misdescription of details. One can see the discrepancies when comparing media reports with the order. For instance, paragraph 19 of the order mentions the defendants’ claim of joint ownership of a pre-partition restaurant in Peshawar, Pakistan. Conversely, this Guardian report states, “The restaurant owners say that their relative, Kundan Lal Jaggi, had worked with Gujral when he moved his restaurant to Delhi in 1947, and it was there that butter chicken was created.” Similarly, while the order mentions “joint ownership” of the restaurant, suggesting a shared creatorship over the dishes, media reporting (e.g., here) indicates that both parties claim independent inventorship of the dishes. Illustratively, the above-mentioned Bar and Bench report states: “While Moti Mahal owners say that it was their predecessor, Late Kundal Lal Gujral who came up with the dishes that now define Indian cuisine across the globe, Daryaganj restaurant says it was Late Kundan Lal Jaggi who came up with the idea.”  

Coming to the case: The question “Who is the inventor,” hints at a potential patentability issue which the case nowhere seems to be about. (Sidenote: If this were the case, it might not be the first time a food recipe has had a close encounter with patent law. For reference see Adyasha’s post here.) Instead, the question mainly revolves around trademarking and/or passing off the tagline “Inventors of Butter Chicken and Dal Makhani.” 

Now, here’s the rub—the order doesn’t make it crystal clear if it’s a registered mark or just a claim underlying tagline reputation. And that’s a detail that’ll flavor the whole case. Plus, there’s a cool question hanging: Can “Inventors of Butter Chicken and Dal Makhani” even be registered as a tagline, given its descriptive nature? Looks like the issue concerns the reputation of the tagline. The Guardian says that Defendants registered the tagline in 2018. Upon cross-checking, while I couldn’t see a separate registration for the above tagline, I found the registered mark “Daryaganj – By the inventors of Butter Chicken and Dal Makhani (Logo and device)”  

Given these details (i.e., the plaintiffs’ lacking registration for the tagline, while the defendants have the same), the former’s grounds for filing infringement are questionable. The only viable claim appears to be that of passing off, particularly concerning the photograph displayed on Daryaganj’s website and Facebook page. While the Facebook image (which seems to be this one) was later argued to be associated with a third party, A to Z Kitchen, for the website photo, (which seems to be the cropped version of this Wikipedia image), the defendants argued that it is from their Peshawar restaurant, which they assert co-ownership of. They emphasized that they deliberately removed the Moti Mahal name from the photo to avoid any accusations of misrepresentation.

Finally, two situations can arise here: one, when plaintiffs prove to be the original inventors. Then, the plaintiffs will need to file a rectification application, considering the defendants’ 2018 registration to wrongly exist in the register. (But this throws up a new question i.e., can a rectification be sought for the registered tagline to be untrue, given the broad ambit of Section 57(2)?) Two, if defendants prove to be joint inventors, then the court will need to decide if the parties can concurrently use the tagline of being an original inventor. Next will be the weighing of the rights of the defendants who started their restaurants in 2019 against plaintiffs whose rights have existed since 1947 or earlier. Notably, I only got to know about these timelines not from the order but from media reports. E.g., see here and here. Most likely, Section 35 of the Trademark Act, 1999 will come into the picture, which says that a proprietor (of registered or unregistered marks) cannot interfere with any bona fide use by a person of the name of his predecessors in business. With that, we reach (and circle back to) the initial query – whether the defendant’s use is bona fide. In other words, who’s the inventor of Dal Makhani and Butter Chicken?

(On a tangential note, two more questions make me wonder: 1.) isn’t the question of “what butter chicken and dal makhani are” a question of fact that needs deliberation too? For, there can be multiple “original creators” of these dishes with their distinct versions of these dishes. No? In sum, what ARE butter chicken and dal makhani?) (For that matter – can a dish that is clearly influenced by uncountable ‘creators’ earlier, even be considered ‘original’ in the first place? 2.) While the inherent truth within a mark may not be a decisive factor in protecting it, it may influence the consumer’s choice. Given this, I wonder if the Court will have to check the “veracity” of the claims, besides their “protectability” under trademark law or passing off.)

Conclusion:

The case’s trajectory is subject to numerous factors and assumptions, given both parties lack clear positions, support, or claims. The plaintiffs’ precise argument and its foundation—be it registration or reputation—remain ambiguous. Conversely, the defendants will have to grapple with the substantial burden of proving their predecessor’s status as the dish’s inventor. For now, there appears to exist a “faded hand-written partnership document from 1949” as Reuters revealed. I anticipate the case will not go that far, especially given the defendants’ lawyer has already “offered[ed] a conciliatory gesture” by agreeing to remove the contested photo within a week. However, they aren’t conceding to the Plaintiffs’ claims. The case will be heard in May 2024. Nevertheless, let’s see, as Aparajita asked, “Who will chicken out of this legal battle?”.

Time will tell.

Thanks to Praharsh Gour and Swaraj Barooah for their input on the piece.

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