Deceptive Similarity in Trademark
Deceptive Similarity in Trademark
What is Deceptive Similarity?
Deceptive Similarity occurs when one trademark resembles another registered trademark so closely that it is likely to deceive or confuse the average consumer regarding the source or origin of goods or services.
It is a key ground for refusal of trademark registration and for action in trademark infringement cases.
The resemblance is such that it induces confusion or misleads the public.
Legal Context (Indian Trademark Act, 1999)
Section 2(1)(zb) defines “deceptively similar” as trademarks or parts of trademarks that are so nearly resembling as to be likely to deceive or cause confusion.
Under Section 11, the Registrar may refuse registration if the trademark is identical or deceptively similar to an earlier mark.
Factors Considered in Deceptive Similarity
| Factor | Explanation |
|---|---|
| Visual Similarity | Similarity in appearance, spelling, and overall look. |
| Phonetic Similarity | Similarity in pronunciation or sound of the marks. |
| Conceptual Similarity | Similarity in the idea or meaning conveyed by the marks. |
| Nature of Goods/Services | Similar or related goods/services increase likelihood of confusion. |
| Class of Buyers | The level of care and attention expected from consumers. |
| Overall Impression | The general impression created on the average consumer. |
Distinction: Deceptive Similarity vs. Mere Similarity
| Aspect | Deceptive Similarity | Mere Similarity |
|---|---|---|
| Likelihood of Confusion | High—likely to deceive or confuse consumers. | Low—may resemble but not cause confusion. |
| Legal Consequence | Grounds for refusal or infringement action. | Usually insufficient for legal action. |
Examples
A mark “STARBUCK” for coffee, when compared with “STARBUCKS” could be deceptively similar.
Using “NIKEE” for sportswear similar to “NIKE” could confuse buyers.
Judicial Approach
Courts examine:
Whether the average consumer is likely to be misled.
The totality of circumstances, not just one factor.
Even minor differences may not avoid deception if the overall impression is confusing.
Summary Table
| Aspect | Details |
|---|---|
| Definition | Resemblance likely to deceive or confuse consumers |
| Key Factors | Visual, phonetic, conceptual similarity, nature of goods |
| Legal Consequences | Refusal of registration, infringement, passing off |
| Distinction from Mere Similarity | Deceptive similarity involves likelihood of confusion; mere similarity does not |
Importance
Protects consumers from confusion and fraud.
Ensures fair competition by protecting established brands.
Prevents unauthorized use of marks that dilute brand value.
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