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June 16, 2021

Court Case Bulletin (CCB): Deceptive Similarity Should be Judged From the Quintessential Common Man’s Perspective

Author: Intern - Vishwa Patel

In the matter of N. Dinesh Kumar v. Shweta Khandelwal [Miscellaneous First Appeal No. 790/2021], a Single Judge [P. Krishna Bhat, J.] of the Karnataka High Court vide judgment dated March 15, 2021, held that the main question that arises for consideration is – “whether there is a likelihood of confusion arising between the two trademarks, in the mind of a ‘quintessential common man’ who looks at any one of them for a fleeting second and whether he is likely to take it for the other trademark?”

Section 2(1)(h) of the Trademarks Act, 1999 defines “deceptively similar”.—A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion”. The section does not specify to whose eyes should there be near resemblance. Nor does it specify the type of person whose likelihood of confusion or deception should be determinative. The test can be from the perspective of several possible different persons such as either the quintessential common man or the participant in the relevant channel of trade or the informed consumer. 

The name ‘Matru Ayurved’ was used by the Plaintiff  for doing business since 2015. Defendant started a business with the name ‘Matruveda’ in the year 2018. In the suit, the City Civil Court granted a temporary injunction restraining the infringement and passing off of the mark. 

In appeal before the Karnataka High Court, Defendant argued that the “plaintiff had started her business under the tradename and trademark ‘Matru Ayurveda’ which is laid inside a logo and similarly the appellant/defendant had started his business under the tradename ‘Matruveda’ with a logo and there is no such resemblance between the same as will lead any purchaser of the products of either party to confuse between the same”. The Defendant also argued that there were several other manufacturers who are using trademarks closely similar to the trademarks of the parties with the prefix ‘Matru’.

Vacating the order of the City Civil Court, it was held by the High Court that while deciding such cases, one should have in mind “the ‘quintessential common man’ who goes to the neighbourhood shop with the idea of purchasing a product of his liking. This ‘quintessential common man’ is neither blessed with the wisdom of Solomon nor the trained eyes of Sherlock Holmes. …In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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