1. INTRODUCTION
Recently, on 06.01.2022, a Single Judge of the
While denying the interim injunction, the Court applied the test of confusion from the standpoint of an "average consumer with imperfect recollection". The Court held that although the marks 'Rooh Afza' and 'Dil Afza' are used for similar products (syrup/sharbat), the rival marks were not identical. The Court noted that the words, 'Dil' and 'Rooh' do not denote the same thing to a common consumer and therefore, there can be no confusion.
The test of an average consumer with imperfect recollection ("Average Consumer test") is not a new concept. It is a test expounded by Courts over a long period of time. Through this article we have tried to breakdown this test for a better understanding of a brand owner.
2. TEST OF CONFUSION
The Average Consumer is understood to be "reasonably well informed" and, rather than making a direct comparison between the products, he/she relies on the 'imperfect picture of the products that he/she has stored in mind'. The general standard is that of the eventual target purchaser who will not make a careful examination of rival products and marks.
In a trademark infringement/passing off suit, this standard is quite subjective in nature as the similarity of rival marks may vary from customer to customer. While a fixed standard or rule is difficult to define, the Courts view two rival trademarks from the perspective of a consumer with average intelligence and imperfect recollection.
The Average Consumer test has stood against the test of time and has been explicated by several Courts in different jurisdictions. One of the initial cases in
As most of the jurisprudence for this test has evolved from
Recently, in passing off disputes such as
INDUSLAW VIEW:
The Average Consumer test does not call for an accurate comparison of the words, syllable by syllable, it looks for the possibility of confusion due imperfect pronunciation and speech, both on the part of the buyer as well as the seller.
While adopting any mark or before initiating legal proceedings, it is important for a brand owner to think from the perspective of an Average Consumer and compare the mark with already existing marks in market. The look/ appearance, and the sound of the trademarks, as well as the nature of the goods, are all relevant considerations to be taken into account while adopting any mark. This will not only help in avoiding any unnecessary objection to the mark, but will also help in evaluating the chances of success in case any legal proceedings are initiated for challenging the same.
Footnotes
1.
2. AIR 1951 Bom 147
3. 2001 (2) PTC 541 SC
4. 2021(88)PTC178(Karn).
5. 281(2021)DLT296. Britannia claimed that ITC is passing off its "SUNFEAST FARMLITE 5-SEED DIGETIVE" biscuits as those of the Britannia's "Nutri Choice Digestive" biscuits by adopting a similar packaging.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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