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Deceptive Similarity Between Marks

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DECEPTIVE SIMILARITY Introduction Deceptive Similarity between two marks is generally assessed using the conceptual understanding of “likelihood of confusion”. It is a legal standard, wherein the court examines whether a person of average intelligence will be misled by the use of defendant’s mark and associate it with the plaintiff’s mark. Section 5(2) of the Trademarks Act 1994, requires that the likelihood of confusion between two marks be one that arises out of similarity of the marks, as well as out of such similarity between the goods or services. Courts have devised separate tests, laying down the broad framework for assessing likelihood of confusion. While assessing deceptive similarity court held as follows: “All relevant circumstances …show more content…

The consumer usually perceives a mark as a whole and does not go into details of analyzing its different aspects. The consumer is presumed to be reasonably observant well-informed but as he rarely has the opportunity to make a comparison between the different marks, he is to depend on the imperfect picture of the marks which he has. It should also be considered that the consumer's degree of attention is to vary according to the different types of goods or services in question. At the same time, if the differences between the marks are so vast that only a "moron in a hurry would be misled," the court will not arrive at a finding of likelihood of …show more content…

Holding in favour of the defendant, the Chancery Division held that the "comparison to be made in considering infringement was between the use of the plaintiff's mark in a nonnal and fair manner in relation to the goods for which it was registered and the way the defendant actually used its sign, discounting added matter or circumstances". Jacob J., speaking for the Chancery Division, came up with certain conceptual tests to determine product relatedness. According to the learned Judge, the following factors assumed relevance while considering the issue of product

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