Advertisements
The Division Bench of Hiralal Parbhudas vs Ganesh Trading Company, AIR 1984 Bom 218 has laid down a comprehensive guideline determining “Deceptive Similarity”. This is of high significance since, our courts have denied keeping two products side-by-side for comparison to prove trademark infringement.
- Factors Laid Down by the Court for Consideration:
- Marks are remembered by the general impressions or by some significant detail rather than by a photographic recollection of the whole;
- Overall similarity is the touchstone;
- Marks must be looked apart from the first impression of a person of average intelligence and imperfect recollection;
- Overall structure, phonetic similarity and similarity of idea are important and both visual and phonetic test must be applied;
- Marks must be compared as whole, microscopic examination being impermissible;
- The broad and salient features must be considered for which the marks must not be placed side by side to find out the difference in design.
- In addition, the nature of the commodity, class of the purchasers, the mode of purchase and other surrounding circumstances must also be taken inconsideration
Advertisements