- Visual, phonetic, or conceptual i.e. overall similarity:
To determine if the marks are similar to each other visually, phonetically, or conceptually, the following case law provides a clear understanding of this aspect: In starbucks corporation vs sardarbuksh coffee and co. & ors., the delhi high court held that the name “sardarbuksh” was deceptively similar to “starbucks” both visually and phonologically, thereby infringing on starbucks’ trademark. The court concluded that the resemblance between the two brands could mislead consumers and weaken the reputation of Starbucks. Consequently, it ordered sardarbuksh to change its business name to “sardar-ji-baksh” or “sardar-ji-baksh coffee & co.” and modify its logo to avoid further infringement. This choice highlights the safeguarding of trademark identity and the avoidance of consumer confusion, as per Indian trademark law.
- Possibility of Confusion:
To ascertain the likelihood of confusion between both the marks in question, one need to consider the similarity between the marks and the goods & services bearing the said marks, similarity of channels of marketing and distribution, consumer sophistication and popularity of the mark, however, there is a case law on this point:
In M/S Lakme Ltd. vs M/S Subhash Trading, the Delhi High Court declared that the brand names “lakme” and “likeme” were phonetically similar, leading to a high probability of customer confusion. Given that both parties sold similar products, the court concluded that the similarity in names could potentially confuse consumers about the plaintiff’s offerings.
- Average Intelligence and Imperfect Recollection:
If the marks in question tend to confuse the customers due their imperfect memory then there are chances of likelihood of confusion among the customers. There is a case law on this point also:
In M/S Mahashian Di Hatti Ltd. v. Mr. Raj Niwas Since 1991, the Delhi High Court held that the defendant’s trademark “MHS,” printed within a hexagonal device on a red background, was deceptively similar to the plaintiff’s registered trademark “MDH,” also displayed in three hexagonal devices on a red background. The court noted that the graphical representation and emblem similarity could cause customer confusion and misinformation, as both parties engaged in the spice trade, thereby violating the plaintiff’s trademark.
- Essential Features Test:
If the essential or dominant feature of the mark is adopted by the rival mark, then there are chances of confusion even though there are differences in both the marks.
The Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories and Amritdhara Pharmacy v. Satya Deo Gupta, along with the Division Bench of the Delhi High Court in Amar Singh Chawal Wala v. Shree Vardhman Rice & General Mills, reiterated a key principle in trademark infringement cases: if the defendant has adopted the essential features of the plaintiff’s registered trademark, differences in get-up, packaging, or other markings on the defendant’s goods or packets—indicating a different trade origin—are immaterial. The focus remains on the similarity of the core elements of the trademark, which could lead to consumer confusion.
- Class of products and distribution channels:
When assessing deceptive similarity in marks, it is crucial to consider the similarity class of goods and the trade channels through which they are being marketed to the end customers. Nevertheless, if the category of goods is not connected, the similarity of trade channels does not result in any variation.
- Similarity in meaning or significance:
The similarity in meaning or significance is enough to suggest a likelihood of confusion, as held by:
The United States Patent and Trademark Office Trademark Trial and Appeal Board while deciding trademark cancellation proceedings in the decision reported as 204 USPQ 257 H. Sichel Sohne, Gmbh v. John Gross & Co., wherein it held that “the fact that the marks have aural and optical dissimilarity is not necessarily controlling on the issue of likelihood of confusion in the marketplace where the marks convey the same general idea or stimulate the same mental reaction, especially where, as in the present case, the marks are coined or arbitrary.”
Thus, considering these standards one can easily come to the conclusion that whether there is any deceptive similarity in trademarks as per the trademark law so as to prevent the confusion among the customers and thereby, protect the brand image of the mark.