The Branding Battlefield: Deceptive Similarity in the Age of E-Commerce

Introduction: The Conflict

In the high-stakes world of online retail, a brand name is not just an identifier; it is the entire storefront. The recent ruling by the Madras High Court serves as a stark reminder that descriptive branding carries significant legal risks.

Freshtohome Foods Private Limited, a Bangalore-based online meat and grocery delivery platform, sought to register the tagline/mark "FRESH NOT FROZEN". They argued this phrase was the antithesis of their competitor's mark, "FRESH N FROZEN", and therefore distinct. However, the Trade Marks Registry and subsequently the High Court disagreed, emphasizing that in the eyes of the average consumer, the two are perilously close.

2. Case Profile

●       Appellant: Freshtohome Foods Private Limited.

●       Respondent: The Registrar of Trade Marks.

●       The Issue: Rejection of Trademark Application No. 3217228 for "FRESH NOT FROZEN".

●       The Conflicting Mark: "FRESH N FROZEN" (Already registered).

●       Class: 35 (Online Retail Services for Food).

●       Judge: Justice N. Anand Venkatesh.

●       Verdict: Appeal Dismissed; Rejection Upheld.

3. The Core Arguments

Arguments on Behalf of the Appellant (Freshtohome)

Freshtohome contended that the Registry adopted an overly rigid approach. Their defense rested on three main pillars:

1.     Semantic Distinction: They argued that "NOT" (exclusion) is conceptually distinct from "N" (inclusion). They claimed "Fresh NOT Frozen" conveyed a specific quality assurance distinct from "Fresh N Frozen."

2.     Sophisticated Consumers: They posited that online shoppers are discerning. Someone buying meat or fish online checks reviews and details, exercising a higher degree of care than an impulse buyer, reducing the likelihood of confusion.

3.     Continuous Use: The mark had been in use since March 2016, allegedly acquiring goodwill without instances of actual market confusion.

Arguments on Behalf of the Respondent (The Registrar)

The Registrar defended the rejection based on settled principles of trademark law:

1.     Phonetic and Visual Similarity: The addition of the letters "OT" was deemed minor. Phonetically, "Fresh-N-Frozen" and "Fresh-Not-Frozen" share an almost identical rhythm.

2.     The "First Impression" Test: In online shopping, consumers rely on quick visual cues. A cursory glance at a screen might lead a consumer to mistake one brand for the other.

3.     Irrelevance of Intent: The Registrar argued that trademark law prioritizes the effect on the consumer over the intent of the applicant. Even if Freshtohome intended a different meaning, if the result is confusion, registration must be denied.

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4. The Court’s Judgment: Justice N. Anand Venkatesh

Justice N. Anand Venkatesh undertook a detailed examination of "Deceptive Similarity." The Court’s reasoning provides a modern framework for understanding trademark conflicts in the digital age.

A. The Test of Commercial Impression

The Court rejected the semantic argument. It held that trademark comparison is not a grammar test but an assessment of overall commercial impression.

"The test is not the meaning assigned by the applicant but the overall impression created by the mark on an average consumer with ordinary intelligence."

B. The "First Look" in E-Commerce

The Court highlighted the reality of the digital marketplace.

"The class of customers who are likely to buy the goods... will be certainly misled on a first look of the trade mark... since the only letters that have been added by the appellant are ‘OT’."

In an app store or search result list, consumers often make split-second decisions. The Court ruled that the "average consumer with imperfect recollection" would struggle to distinguish between the two marks.

C. Identity of Services (Class 35)

A crucial factor was that both marks operated in Class 35 covering identical services: online retail of food products. When services are identical, the requirement for the trademarks to be distinct is much higher to prevent a monopoly or confusion.

5. Key Legal Takeaways & Business Implications

1. Descriptive Marks are Weak Assets

Both marks lean heavily on descriptive words ("Fresh", "Frozen"). The Court’s decision illustrates that if you choose a descriptive name, you will struggle to enforce it against slightly similar variations, or conversely, struggle to register it if a similar descriptive mark exists.

2. Phonetics Matter More Than Semantics

Even if two phrases mean opposite things ("And" vs "Not"), if they sound the same, they are legally deceptively similar. Branding teams must conduct "Sound Tests" alongside visual design.

3. The Myth of the "Careful" Shopper

Startups often argue their users are "tech-savvy" and won't get confused. Courts generally reject this, adhering to the principle that even smart consumers can be hurried or confused by similar branding.

4. Limited Relief

The Court clarified that the rejection applies only to this specific mark. Freshtohome is free to apply for a different, distinct trademark. However, this involves a loss of the brand equity built around the specific phrase "Fresh Not Frozen" over the last 9 years.

Conclusion

The decision in Freshtohome Foods Private Limited v. The Registrar of Trade Marks reinforces the high barrier for trademark registration in crowded sectors. It serves as a precedent that in the battle between Meaning (Semantics) and Perception (Visual/Phonetic similarity), perception usually wins in the eyes of the law.

For businesses, the lesson is clear: Distinctiveness is the best defense. Relying on common industry terms and hoping a small variation will suffice is a legally perilous strategy.

Disclaimer: This blog post is based on the Madras High Court order dated December 18, 2025. It is for informational purposes only and does not constitute legal advice.