Trademark which are Visual and phonetic similar -study of judicial trends in India

INTRODUCTION 

Since a company's brand serves as its identity, goodwill and brand value are essential to any organisation. By strengthening a company's reputation, trademarks provide it identity and a sense of standard; therefore, a high-quality product is equally important to a business's growth as trademarks. A trademark gives a business value, a brand identity, and revenue-generating potential. Considering its significance in identifying a business or product, a trademark is vulnerable to abuse and infringement.

The Trade Marks Act, 1999, which established criteria for judging a mark's distinctiveness under Sections 9 and 11, governs trademark law affairs. Provisions regarding infringement of a registered mark due to phonetic resemblance are incorporated into the Act's Section 29(9). It claims that marks can be infringed upon simply by having similarity in appearance or pronunciation. In comparing trademarks, the Indian Apex Court has noted on multiple occasions that one should utilise both sight and ears. The article seeks to examine the legal developments of trademark similarities in India, both phonologically and visually.

UNDERSTANDING THE CONCEPT OF DECEPTIVE SIMILARITY

A trademark is defined under [Sec 2(zb)] of Trademarks Act, 1999 as “a mark that represents graphically and which is capable of distinguishing the goods or services of one person from those of the others and may include shape of goods, their packing and combination of colours”. The Trade Marks Act of 1999 permits trademarks to be registered or unregistered.
In the event of infringement, the aforementioned act grants certain rights to registered trademarks; for unregistered trademarks, rights are enforced under the common law tort of passing off. Trademarks can be fraudulently exploited by others by generating confusing symbols or logos, thus the owner of the trademark has the right to protect it from any fraudulent abuse.

According to Section 2(1)(h) of the Trade Marks Act, 1999, a mark is deemed deceptively similar to another if it so nearly resembles it that it is likely to deceive or cause confusion.

Visual similarity is an important factor in trademark law because trademarks function as distinctive identifiers of goods and services in the retail setting. A buyer's misconception brought on by a visually similar trademark can damage a company's reputation and brand recognition. Visual resemblance is the term used to characterise similarities between two or more trademarks. involves looking at visual elements such as colour, font, form, and arrangement to determine whether trademarks are confused with one another. Courts and trademark regulators closely examine the visual elements to ascertain whether there is a possibility that buyers would become confused.

Trademark law's primary objective is to shield consumers from misinterpretations as they make purchases. Customers may become confused and misidentified by a physically similar brand, leading them to believe that the same firm produces the goods or services. Similarities in appearance have an impact on recognition and recall of brands. A trademark that bears resemblance to another well-known brand may benefit from that other brand's popularity and reputation, providing it an unfair advantage and diminishing the distinctiveness of the original mark.

Phonetic similarity is the resemblance between more than two trademarks' pronunciations. It comprises hearing the words spoken aloud and listening for phonological elements, such as word pronunciations and tones. Customers assume that goods or services are manufactured by the same company when marks are similar, which could lead to uncertainty in the market as a whole. Phonological similarity may influence memory and brand identification. A registered trademark that sounds exactly like a well-known mark may benefit from that other brand's ubiquity and reliability, which would give it an unfair advantage and lessen the distinctiveness of the original mark. Trademark authorities consider auditory similarities when reviewing registration applications. In order to avoid consumer confusion, a trademark may not be protected if it is phonologically identical to a currently registered mark.

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Judicial Trends in Determining Visual Similarity

In the case of "Cadbury India Ltd vs Neeraj Food Products," the plaintiff, a reputable manufacturer and distributor of chocolates and associated products, submitted a trademark application under the term "GEMS". The plaintiff asked the court for an order of protection against the respondent for allegedly selling an item bearing the mark "JAMES BOND" that resembled the plaintiff's "GEMS" trademark in terms of size and appearance. The product sold under the "JAMES BOND" name, according to the complainant, was deceptively similar to "GEMS." The defendant's goods were found to be misleadingly identical to the complainant's by the judge, who also issued an order prohibiting the sale of the aforementioned commodity.

Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd, 2001 5 SCC 7

The Apex Court listed the elements of the likelihood and confusion test in this case, which involved a pharmaceutical company's request for an injunction because its drug, "FALCOGO," was confusingly similar to another company's drug, "FALCITAB," which was being produced for the same illness. The word "Falci," which comes from the name of the illness, Falcipharum Malaria, served as the inspiration for both marks.
The Hon'ble Court believed that despite the supervision of medical specialists, there was a chance that the two marks might be confused because of their phonetic similarity, which could result in medical negligence. In this instance, the Rule of Anti-Dissection was established, which states that a mark must be evaluated as a composite whole rather than by dissecting it into its component pieces because the typical customer would evaluate a mark "totally" rather than "in parts."

In Colgate-Palmolive v. Anchor Health (2003), the Bombay High Court ruled in favor of Colgate, finding that the red-and-white color scheme used by Anchor was visually similar enough to cause confusion, even though the word marks were different.

M/S Mahashian Di Hatti Ltd. vs Mr. Raj Niwas, Proprietor Of MHS, Masala

Manufacturing and marketing "spices & condiments" under the registered trademark "MDH" in three hexagonal devices against a red backdrop is the plaintiff company's line of business. Since 1991, the Trademark has been registered under the Plaintiff Company's name. In addition, the complainant states that they have been utilising the trademark for different spices since 1949. The defendant has been utilising the "MHS" mark inside a hexagon device on a carton with a red background colour, which is meant to resemble those that the plaintiff's company uses.

The plaintiff alleges that this is an infringement of its registered trademark and is being done with the intent to pass off the defendant's goods as being those of the plaintiff. Therefore, the plaintiff has requested an injunction to prevent the defendant from using the "MHS" logo or any other trademark that is confusingly similar to the plaintiff's registered brand. In addition, it requested damages and an injunction to prevent the defendant from misrepresenting its products as those of the plaintiff in order to destroy the infringing material.

As a result, it is decided that the defendant has violated the registered trademark and that they are forbidden from producing, distributing, or selling any spices or condiments under the contested logo "MHS" or any other mark that is confusingly similar to the plaintiff's registered trademark "MDH." The plaintiff requested punitive damages from the defendant.

JUDICIAL TRENDS IN DETERMING PHONETIC SIMILARITY

The "Delhi Lakme Limited vs. Subhash Trading" litigation pitted Delhi Lakme Limited against Subhash Trading for claimed trademark infringement. The primary issue pertained to Subhash Trading's alleged inappropriate utilisation of the "Lakme" trademark. While the defendant sold a comparable class of goods under the LikeMe brand, the plaintiff sold beauty products under the Lakme brand. There was no denying the similarities between the two terms. Given that it was also mentioned, the words also sound similar. There is a potential that the buyer will become confused and deceived. The court's ruling supported Delhi Lakme Limited, finding that Subhash Trading's use of the term "Like me" constituted a trademark infringement. The judge determined that there was enough reason for legal action because of the brands' similarity and the possibility of customer confusion.

Sudhir Batra Trading as Merch (India) Vs Arjies Aluminum Udyog

The plaintiff Sudhir Batra trading as Merch (India) has his trademark registered as “ARCHIS” The defendant has been using the trademark “ARJIES” phonetically similar to that of the plaintiff “ARCHIS” which was under subjudice. The plaintiff sought an interim injunction against the defendant. The High Court held that words look identical and ordinary customer can easily be misled and be confused. Hence allowed the application restraining the defendant from using trademark “ARJIES”

CONCLUSION

In Indian trademark law, the question of trademarks' visual and phonetic resemblance is still controversial, and courts are vital in weighing the competing interests of consumers and trademark owners. Legal rulings have underlined the significance of taking into account local pronunciations, customer class, and the overall image produced by marks when assessing similarity. Notwithstanding, several obstacles persist, namely concerning the subjective nature of legal evaluations and the consequences of decisions for smaller enterprises.

Although Indian courts have made great strides towards creating unified principles, more clarification is still required to handle new issues arising from the digital and international economy. Going forward, businesses and consumers will be able to handle trademark conflicts more skilfully with the support of stronger rules and more uniformity in court rulings. The intersection of visual and phonetic similarity will continue to evolve, reflecting the dynamic nature of the Indian market and consumer behavior.