Few questions in Indian trademark law arise more frequently, or are decided with greater consequence, than whether two competing marks are deceptively similar to each other. The resolution of this question governs whether a trademark application will be accepted or rejected by the Registrar, whether an opposition proceeding will succeed or fail, and whether an infringement suit will result in an injunction or be dismissed. The test applied by courts and the Trademark Registry to answer this question – the consumer confusion test – is the central organising principle of deceptive similarity analysis in India.
The concept is deceptively simple in its statutory formulation but demands sophisticated application in practice. The Trade Marks Act, 1999 defines the term tersely, leaving courts to develop the substantive content of the doctrine through decades of adjudication. The result is a body of jurisprudence that is rich, nuanced, and calibrated to the social and demographic realities of the Indian market in ways that distinguish it from the trademark law of other jurisdictions.
The Statutory Definition – Section 2(1)(h)
Section 2(1)(h) of the Trade Marks Act, 1999 defines the concept as follows: 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 definition is intentionally open-textured. Parliament did not specify any criteria for determining when resemblance rises to the level of deception or confusion. The Act provides no exhaustive list of factors, no prescribed methodology, and no hierarchy of considerations. Each case is to be decided on its own facts, with the weight given to individual factors varying with the nature of the marks, the character of the goods or services, and the identity of the consumers likely to encounter them.
This deliberate flexibility serves an important purpose. The universe of trademark disputes is enormously varied – a dispute over pharmaceutical product names involves different considerations from a dispute over luxury fashion logos; a dispute between marks used for industrial machinery involves a different consumer base than one involving mass-market consumer goods. A rigidly codified test would not serve the diversity of these contexts. The courts have accordingly developed a set of principles and sub-tests through judicial decision that together constitute the Indian consumer confusion test.
Where Deceptive Similarity Operates in the Act
Before examining the test itself, it is important to understand the multiple provisions of the Act in which the concept of deceptive similarity plays a role.
Section 11(1) provides that a trademark shall not be registered if, because of its identity with, or similarity to, an earlier trademark and the identity or similarity of the goods or services covered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trademark. This is the primary provision governing the refusal of registration on relative grounds, and it is at this stage that the majority of deceptive similarity disputes arise – in examination of applications, in opposition proceedings, and in rectification applications before the Registrar and the High Court.
Section 11(2) extends protection to well-known trademarks even in respect of dissimilar goods and services. A trademark shall not be registered if it is identical or similar to a well-known trademark in India and its use would take unfair advantage of, or be detrimental to, the distinctive character or repute of the well-known trademark. For well-known marks, therefore, the consumer confusion test operates across class boundaries.
Section 29(1) and (2) apply the deceptive similarity standard in the context of infringement proceedings. Under Section 29(2), a registered trademark is infringed where the defendant’s mark, because of its identity or similarity to the registered mark and the identity or similarity of the goods or services covered, gives rise to a likelihood of confusion on the part of the public, including a likelihood of association with the registered trademark. The standard for infringement is thus substantially the same as the standard for refusal of registration – both are ultimately grounded in the likelihood of consumer confusion.
The Consumer Confusion Test – Core Principles
Indian courts have, over more than six decades of adjudication, developed a set of foundational principles that constitute the consumer confusion test. These principles have been formulated and refined in a series of Supreme Court decisions, each of which has contributed to the coherent body of doctrine that applies today.
The Perspective of the Average Consumer with Imperfect Recollection
The most fundamental principle of the Indian consumer confusion test is that the assessment must be made from the perspective of a person of average intelligence with imperfect recollection – not an expert, not a trademark lawyer, not a person of exceptional observation, and not a person who has both marks placed before them simultaneously for careful comparison.
This principle was authoritatively stated by the Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142, (1960) 1 SCR 968. In this case, the appellant held the registered mark “GLUCOVITA” – a composite mark used for a dextrose product mixed with vitamins in Class 30. The respondent sought registration of the mark “GLUVITA” for biscuits. The Supreme Court held that the test of deceptive similarity must be approached from the point of view of a person of average intelligence and imperfect recollection. To such a person, the overall structural and phonetic similarity and the similarity of the idea conveyed by two marks is the determinative question. The Court also held that a trade connection between different goods is a relevant consideration – since glucose was used in the manufacture of biscuits, the marks occupied proximate commercial territory and the likelihood of confusion was real.
The rationale for the imperfect recollection standard is grounded in consumer behaviour. A person purchasing goods does not typically have both competing marks before them at the same time. They encounter one mark, form an impression of it, and then – perhaps days or weeks later – encounter the other mark. Their response is mediated not by precise visual comparison but by a general impression retained in memory. As the Supreme Court observed in Parle Products (P) Ltd. v. J.P. & Co., Mysore, (1972) 1 SCC 618, AIR 1972 SC 1359, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes.
Marks Must Be Compared as a Whole – The Anti-Dissection Rule
The second foundational principle is that marks must be considered in their entirety. Courts must not dissect a mark into its component parts and compare individual elements in isolation. The question is whether the mark as a whole – in its totality, including its visual impression, phonetic character, and conceptual meaning – is likely to cause confusion.
This principle, often called the anti-dissection rule, was stated by the Supreme Court in Parle Products (P) Ltd. v. J.P. & Co., Mysore – the celebrated biscuit packaging case. Parle Products held the registered trademark for a distinctive buff-coloured wrapper depicting a farmyard scene with a girl carrying a pail of water, cows and hens in the foreground, a farmhouse in the background, and the words “Gluco Biscuits” prominently displayed. J.P. & Co., Mysore was selling biscuits in a wrapper that reproduced substantially the same elements – similar colour scheme, similar farmyard imagery, similar positioning of the words “Glucose Biscuits.” The trial court and the Mysore High Court had dismissed Parle’s suit by identifying a series of distinguishing features between the two wrappers and concluding that these differences would prevent consumer confusion. The Supreme Court set aside these concurrent findings, holding that both courts had applied the wrong legal standard. The correct approach requires a comparison of the broad and essential features of the marks, not a meticulous inventory of similarities and differences. If the essential features have been copied, the fact that there are also differences in minor details does not save the defendant from a finding of infringement.
The anti-dissection rule reflects a basic truth about consumer psychology: a buyer remembers a general impression of a mark – its overall look, its dominant element, the feeling it evokes – rather than a detailed catalogue of its components. A mark can therefore be deceptively similar to another even if there are points of difference, provided the overall impression it creates in the mind of a consumer of average intelligence is likely to cause confusion with the earlier mark.
No Side-by-Side Comparison
The third principle follows directly from the imperfect recollection standard: courts should not place the two marks side by side and compare them with close attention. The proper inquiry is whether the marks create a similar overall impression when encountered separately, as they would be in commerce. A meticulous side-by-side comparison that catalogues the differences between marks defeats the purpose of the test – it transforms the enquiry from one about consumer perception into one about forensic dissection, which is precisely what the doctrine prohibits.
Likelihood of Confusion – Not Actual Confusion
The test is one of likelihood of confusion or deception, not of actual confusion. It is not necessary to prove that any particular consumer was in fact confused. It is sufficient to establish that an average consumer of the relevant goods or services, exercising the degree of care ordinarily exercised in that kind of purchase, would be likely to be confused. This distinction is of considerable practical importance in litigation: a claimant need not produce evidence of instances of actual confusion. The assessment of likelihood is a matter for the court, to be determined as a question of first impression.
The Supreme Court articulated this in Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, (1963) 2 SCR 484. Amritdhara Pharmacy had been using the mark “AMRITDHARA” for a medicinal preparation since 1901. Satya Deo Gupta applied for registration of the mark “LAKSHMANDHARA” for a similar medicinal preparation. The Registrar initially found sufficient similarity to deny registration but permitted it within the State of Uttar Pradesh on grounds of honest concurrent use. The Allahabad High Court reversed the Registrar’s decision, finding the marks dissimilar. The Supreme Court overruled the High Court and found the marks deceptively similar. The Court framed the fundamental questions to be asked in any deceptive resemblance analysis: first, who are the persons likely to be deceived or confused; and second, what rules of comparison are to be adopted to judge whether such resemblance exists. The Court held that the test requires assessment from the perspective of consumers purchasing the goods – in this case, members of the public including villagers and townsfolk, literate and illiterate, who purchase medicinal preparations for the alleviation of ailments without visiting a doctor. To such consumers, the overall structural and phonetic similarity between “Amritdhara” and “Lakshmandhara” was likely to cause deception or confusion. The fact that no evidence of actual confusion had been led was not a bar to this finding.
The Multi-Factor Analysis – Cadila’s Contribution
The most comprehensive elaboration of the factors relevant to the deceptive similarity analysis in the context of pharmaceutical marks – and by extension in all consumer goods cases – was provided by the Supreme Court in Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73. The Court laid down the following factors to be considered in determining whether two marks are deceptively similar:
The nature of the marks – whether the competing marks are word marks, label marks, or composite marks. Word marks are assessed primarily on phonetic and visual resemblance; composite marks require comparison of the overall get-up, colour scheme, dominant elements, and overall visual impression.
The degree of resemblance – phonetic, visual, or conceptual. Phonetic similarity focuses on how the marks sound when spoken aloud. Visual similarity focuses on the appearance of the marks on paper or packaging. Conceptual or ideational similarity focuses on whether the marks convey the same or similar idea – an important consideration in the Indian context, where marks may be in different languages but carry equivalent meanings.
The nature of the goods or services – including the class of goods, their use, and whether they are used in similar or proximate contexts. Goods that are likely to be purchased together, or that are commonly associated in the minds of consumers, are more susceptible to confusion than goods that belong to entirely unrelated commercial spheres.
The similarity of the nature, character, and performance of the goods – whether both products serve the same or similar function, even if they may differ in formulation or presentation.
The class of consumers – their education, intelligence, and degree of care. A market composed primarily of sophisticated, literate, and price-conscious consumers warrants a more rigorous test of confusion. A market composed of illiterate, semi-literate, or otherwise less discerning consumers requires a more protective standard. In Cadila, the Court emphasised that pharmaceutical products are particularly vulnerable to deceptive similarity claims: drugs may be prescribed verbally by doctors and requested verbally by patients at pharmacies, making phonetic similarity especially dangerous. The risk of harm from administering the wrong drug is a public health concern, not merely a commercial one.
The mode of purchasing – whether goods are sold over the counter, by prescription, through catalogues, online, or through direct sales. Goods purchased quickly and cheaply receive less careful attention from consumers than those involving significant deliberation and expenditure.
These factors are not exhaustive and do not constitute a mechanical checklist. They are instruments of analysis to be applied with judgment, in the context of the specific facts of each case.
Phonetic, Visual, and Conceptual Similarity
Indian courts recognise three primary dimensions along which similarity between marks is assessed.
Phonetic similarity focuses on the sound of the marks when spoken aloud. This is of particular importance in India for two reasons. First, a substantial proportion of the population purchases goods by oral request – asking a shopkeeper for a product by name rather than reading the packaging. Second, in a country with over twenty-two officially recognised languages and numerous regional dialects, the same word may be pronounced differently in different parts of the country, and transliterations from one script to another may produce marks that are phonetically identical even if visually distinct. The Supreme Court held in Cadila Healthcare v. Cadila Pharmaceuticals that phonetic similarity between pharmaceutical marks must be assessed with particular strictness.
In Ruston & Hornsby Ltd. v. Zamindara Engineering Co., (1969) 2 SCC 727, AIR 1970 SC 1649, the Supreme Court held that “RUSTAM-E-HIND” was phonetically and deceptively similar to the registered mark “RUSTON” for diesel engines. The defence that the defendant’s mark included additional words that distinguished it from the registered mark was rejected. The Court held that the test is one of likelihood of deception; where the phonetic identity of the dominant element is established, the addition of prefixes, suffixes, or subsidiary words does not save the mark.
Visual similarity examines the appearance of the marks – their spelling, design elements, colour scheme, layout, and overall get-up. Trade dress – the totality of visual elements associated with a product, including packaging, colour combinations, and design – is assessed for visual similarity in the same manner as word marks. Parle Products v. J.P. & Co. is the pre-eminent authority on visual similarity in trade dress disputes.
Conceptual or ideational similarity applies where two marks convey the same underlying idea, even if they do so through different words, languages, or symbols. Marks that are translations of each other into different languages, or that use different words to denote the same concept, may be found deceptively similar on this basis. The Supreme Court in Corn Products Refining Co. v. Shangrila Food Products held that the idea conveyed by both “GLUCOVITA” and “GLUVITA” – the combination of glucose and vitality – was the same, and that conceptual similarity contributed to the likelihood of confusion.
Indian courts have found deceptive similarity based on conceptual equivalence in several notable cases. The marks “SURYA” and “BHASKAR” were found deceptively similar because both are Hindi words meaning “sun” – the same conceptual idea expressed through synonymous terms. Similarly, “PEACOCK” and “MAYUR” – the English and Hindi words for the same bird – have been held to be deceptively similar on conceptual grounds.
The Nandhini Principle – Context, Goods, and Consumer Base Matter
The Supreme Court’s 2018 decision in M/S. Nandhini Deluxe v. M/S. Karnataka Co-Operative Milk Producers Federation Ltd., (2018) 9 SCC 183, AIR 2018 SC 3516 introduced an important qualification to the consumer confusion analysis: phonetic similarity alone, without more, does not compel a finding of deceptive similarity if the nature of the goods, the consumer base, and the overall impression of the marks in their respective commercial contexts differ sufficiently to make confusion unlikely.
Karnataka Co-Operative Milk Producers Federation Ltd. had been using the mark “NANDINI” since 1985 for milk and milk products, with registrations in Classes 29 and 30. Nandhini Deluxe, a restaurant chain operating primarily in Bengaluru, had been using the mark “NANDHINI” since 1989 for restaurant services and applied for registration in respect of various food items sold in its restaurants. The Federation opposed the application, contending that the two marks were phonetically identical and that the goods fell within the same broad class.
The Intellectual Property Appellate Board (IPAB) and the Karnataka High Court upheld the opposition. The Supreme Court, however, set aside these orders and allowed the registration of “NANDHINI DELUXE” with a condition that it be excluded from milk and milk products. The Court reasoned that although the two marks were phonetically similar, the visual appearance of the marks – which included different logos, the addition of “DELUXE” to the appellant’s mark, and different pictorial devices – was sufficiently distinct. More importantly, the nature of the goods and the context of their use were different: a cooperative dairy federation producing milk and milk products, and a restaurant chain serving prepared food. The Court held that an average consumer of ordinary intelligence, encountering these marks in their respective commercial contexts, was unlikely to associate one with the other.
The Nandhini decision makes an important contribution to Indian trademark law: it confirms that the consumer confusion test is not a mechanical exercise in phonetic or visual comparison. It requires a holistic assessment that accounts for the actual conditions under which consumers encounter the competing marks, the nature of the goods or services they identify, and the realistic possibility that a consumer would associate one with the other.
Honest Concurrent Use – Section 12
The Trade Marks Act, 1999 acknowledges that in some cases two marks that are similar or even identical may have been in honest concurrent use in the Indian market, such that their coexistence does not cause undue confusion. Section 12 of the Act empowers the Registrar, in the case of honest concurrent use or other special circumstances, to permit registration of a mark that would otherwise be refused on grounds of deceptive similarity, subject to conditions and limitations as the Registrar thinks fit.
The principle of honest concurrent use was discussed by the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta, where the Registrar had initially permitted the registration of “LAKSHMANDHARA” for Uttar Pradesh on the basis that Amritdhara Pharmacy’s acquiescence in the respondent’s long-running use of the mark in that state constituted a special circumstance. The Supreme Court upheld the Registrar’s finding on acquiescence. The doctrine establishes that where concurrent use has been genuinely established over a significant period of time without evidence of actual confusion, and where the proprietor of the earlier mark has not protested the use, coexistence may be permitted.
Relative Grounds for Refusal – Section 11 in Registration Proceedings
In the context of trademark registration, deceptive similarity functions as a relative ground for refusal under Section 11(1). The Registrar of Trade Marks, upon receiving an application for registration, conducts a search of the register for marks that are identical or deceptively similar to the applied-for mark in respect of the same or similar goods or services. If such a prior mark exists and its use alongside the applied-for mark would create a likelihood of confusion, the Registrar issues an examination report citing the similar marks as an objection.
The applicant may respond to the objection by distinguishing their mark from the cited mark – on grounds of visual, phonetic, or conceptual distinctiveness – or by arguing that the goods or services are sufficiently different that confusion is unlikely. If the objection is maintained, the applicant may seek a hearing before the Registrar. An adverse decision of the Registrar may be challenged by appeal, now before the High Court following the abolition of the Intellectual Property Appellate Board in 2021.
Third parties who become aware of an application for a mark deceptively similar to their own registered or prior-used mark may file an opposition under Section 21 of the Act within four months of the publication of the application in the Trade Marks Journal.
The Role of Deceptive Similarity in Infringement – Section 29
In infringement proceedings under Section 29, the deceptive similarity standard applies with the same principles as in registration proceedings. However, there is an important distinction: in an infringement action, the registered proprietor’s rights flow from the registration itself. Once the plaintiff establishes that their mark is registered and that the defendant is using a mark that is identical or deceptively similar to it in relation to the same or similar goods or services, infringement is made out without the need to prove actual confusion or damage.
As the Supreme Court stated in Parle Products v. J.P. & Co., an infringement action differs from a passing off action in this crucial respect: it is not necessary for the plaintiff in an infringement action to establish goodwill, actual confusion, or damage. The exclusive right conferred by registration under Section 28 of the Act is infringed as soon as a deceptively similar mark is used in the course of trade in respect of the registered goods or services, whether or not any consumer was in fact misled.
Conclusion
Deceptive similarity and the consumer confusion test together constitute the doctrinal heart of Indian trademark law. Whether the question arises in registration proceedings before the Trademark Registry, in opposition or rectification proceedings, or in infringement and passing off suits before the courts, the analysis returns always to the same foundational enquiry: would a consumer of average intelligence, encountering the defendant’s mark with an imperfect recollection of the plaintiff’s mark, be likely to be confused?
The judicial principles developed over six decades of Supreme Court jurisprudence – from Corn Products and Amritdhara in the early 1960s, through Parle Products in 1972, to Cadila in 2001 and Nandhini in 2018 – have produced a test that is flexible, contextual, and attentive to the social and demographic realities of the Indian market. The inclusion of the class of consumers as a determinative factor, the elevated standard for pharmaceutical marks in the interest of public health, and the recognition that conceptual equivalence between marks in different languages can ground a finding of deceptive similarity all reflect a doctrine developed with the Indian consumer in mind.
For trademark owners and practitioners, the practical implications are clear. The registration of a mark that resembles an existing mark – in sound, appearance, or meaning – carries real legal risk. The defence that the marks differ in certain respects is unlikely to succeed if the broad and essential features are similar and the class of consumers is one that purchases with limited care and imperfect recollection. Conversely, where marks are used in genuinely different commercial contexts, serve different consumer bases, and are visually and contextually distinct when encountered in the market, coexistence may be permissible even in the face of phonetic similarity.
References
- The Trade Marks Act, 1999 (Act No. 47 of 1999) – https://ipindia.gov.in
- The Trade Marks Rules, 2017 – https://ipindia.gov.in
- Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142, (1960) 1 SCR 968
- Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, (1963) 2 SCR 484
- Ruston & Hornsby Ltd. v. Zamindara Engineering Co., (1969) 2 SCC 727, AIR 1970 SC 1649
- Parle Products (P) Ltd. v. J.P. & Co., Mysore, (1972) 1 SCC 618, AIR 1972 SC 1359
- Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73
- M/S. Nandhini Deluxe v. M/S. Karnataka Co-Operative Milk Producers Federation Ltd., (2018) 9 SCC 183, AIR 2018 SC 3516
- TRIPS Agreement, Annex 1C – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
- Manual of Trade Marks Practice and Procedure – https://ipindia.gov.in
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