A Trademark can be defined as a particular word, phrase, logo, or design, or any arrangement which recognizes and differentiates the source of that good or service. The holder of a recognized trademark maintains exclusive privileges for its usage and rivals are forbidden from applying or using either the same or similar mark to advertise similar goods or services.
WHAT IS DECEPTIVE SIMILARITY?
Once an individual acquires the trademark registration, he obtains significant rights for the usage of the registered trademark which is in relation to the commodities where it is registered. In case of any infringement or privileges with another individual making use of the mark that is indistinguishable or deceivingly as his trademark, he can safeguard the mark by means of an act for infringement and acquire an injunction. Therefore, the reason for giving protection is that the mark will not get registered that is expected to mislead the society or which can create misunderstanding amongst the people regarding the ‘origin’ of those goods.
The phrase ‘deceptive similarity’ like mentioned “under section 2(1)(h) of the Trademarks Act, 1999” states – the similarity or resemblance should be such as it would possibly deceive or cause misunderstanding. In order to conclude whether one mark is deceivingly similar to another, the wide and vital qualities should be taken into consideration. These are not essential to remain positioned to determine whether there is some difference in their layout. The examination of evaluation of the marks kept aside is not complete because the question arising is not whether an individual, while gazing at the marks side by side is confused or not but whether the person who sees the said trademark in absenteeism of another trademark is held responsible which is misled aimed at where he had a common sided remembrance. Deceit can arise about the deception as to the goods, deception for the origin of trade, deception as to the trade connection.
WHETHER MISREPRESENTATION IS CONSIDERED DECEPTIVE?
For determining if the falsification is misleading, the marks should be looked at entirely So, it must be assumed mind that the objective is to make a fundamental analysis of whether the mark which is applied by the defendant is deceptively like the registered mark of the plaintiff.
While analyzing the issue of falsification or deceit, a contrast must be there amongst both trademarks. The Anti-Dissection Rule evaluates and compares compounds as a whole contradictory aggregate marks which are contrasted by gazing at them, instead of smashing the marks into their element components for assessment. They should be compared entirely and not in parts. It is not appropriate to think that because the disparity in the portion of the word is there of the corresponding piece, in that case, no adequate similarity is there to trigger uncertainty. The real test is if the entirety of the intended trademark is expected to trigger misunderstanding or not.
To decide that whether both the marks are misleadingly related, and the resemblance is affected with whatever is needed – “a mere resemblance”. The “ordinary observer” test is applied to ascertain if the two performs or results are significantly linked. The Court shall take a look at the response of a normal lay viewer to decide whether a copyright owner’s innovative representation is identifiable in the allegedly violating work. The issues making uncertainty varies upon the type of mark only, the category of clients, business channel, the listing is not complete as there are several more aspects which are vital to be undertaken into inference to standardize if there is a likelihood of misunderstanding or dishonesty regarding a mark.
When a mark utilized by the owner distorts the society or not fluctuates upon the array of reasons and no particular response can be taken to determine if the contested mark generates uncertainty as to the “source or origin” of goods. It varies according to the conditions of every specific case. In few cases, courts have also provided concern to the ordinary considerations appearing amongst both the marks while occasionally courts consider the unusual aspects.
Trademarks shall be considered deceptive if they deceived the people with respect to the value of goods through which they are attached.
TYPES OF SIMILARITY
- The “visual similarity” of the marks: It comprises the size of marks, usage of “prefixes, suffixes, common syllables, and shared elements of shape”.
- The “aural similarity” of the marks: It takes place upon resemblance after the marks are noticeable. It varies on the size of the mark, the total alphabets, and also the pronunciation of the marks. Phonetic and visual similarity refers to the reference to the ear as well as the eye.
- The “conceptual similarity” of the marks: There are some marks that may not seem or sound similar but can be related in theory. The important thing is to look at is the whole idea of the mark.
Scope of Section 11(1):
“According to this section, a trademark, which because of its identity or similarity with an earlier trademark and the similarity of goods or services or identity or similarity of goods or services, respectively, there is a likelihood of confusion on the part of the public, shall not be registered. To entice this, it is essential that the trademark which is in question must be identical to a previously registered trademark and also the goods or services should be related which are protected by the previous trademark”.
Deceptive Similarity as a base meant for rejection of trademark enrolment is an extremely vital aspect of this Act, amongst other additional provisions protected below the limit. As mentioned, evidence of intent to demonstrate if there is any Deceptive Similarity or not is immaterial. What leads to deceit is a mere matter of circumstance and varies upon details and different situations in every case.
Author’s Name Kalyani Gupta (Amity University, Noida)