Delhi High Court on Descriptive Similarity and Deceptive Similarity
1. 🔍 Descriptive Similarity
Definition: Refers to the use of words that describe qualities or functions of a product—terms like “super,” “low-cost,” etc.—rather than unique brand identifiers.
Key Principle: Courts refrain from monopolizing such descriptive terms unless they’ve acquired secondary meaning or distinctiveness through extensive use.
In Marico Ltd. v. Agro Tech Foods Ltd., the Court held that “Losorb” could not be monopolized as it merely described low-absorbency; descriptive terms cannot be claimed unless they gain distinctiveness
Similarly, in Soothe Healthcare v. Dabur (11‑Jul‑2022), the word “Super” in DABUR BABY SUPER PANTS was held merely descriptive—not deceptively similar to SOOTHE’s SUPER‑CUTE marks
Implication:
Descriptive similarity is not enough to block use or registration, unless the descriptive element has acquired distinctness or been widely recognized in the marketplace.
2. 🧠 Deceptive Similarity
Definition (Section 2(h), Trade Marks Act): When a trademark so closely resembles another that it is “likely to deceive or cause confusion”
Assessment Approach: The Court looks at trademark as a whole—considering visual, phonetic, and even conceptual similarity, from the perspective of a customer of average intelligence and imperfect recollection
Notable Illustrations from Delhi High Court:
Soothe v. Dabur (2022)
The use of the common word “SUPER” was deemed descriptive, not infringing
Officer’s Choice v. Fauji (2019)
Although “fauji” could be loosely translated as “officer,” the Court ruled the marks weren’t deceptively similar—phonetically distinct and conceptually different
KRBL Ltd. v. Praveen Kumar (2025)
The Christened “INDIA GATE” and “BHARAT GATE” rice brands were held deceptively similar: phonetic, visual, and even conceptual resemblances created a likelihood of associative confusion
Castrol Ltd. v. Kapil & Anr. (18‑Feb‑2025)
“ACTIVE” and “ACTIBOND” used by the defendant were deceptively similar to Castrol’s “ACTIV”/“ACTIBOND”—there was evidence of intent to mislead and replicate trade dress
Legal Tests & Principles
Holistic Comparison: Marks are compared as complete entities, not dissected—though courts can weigh dominant features more heavily
Supreme Court Guidelines (Cadila): Courts examine nature of the mark, degree of resemblance, goods/services, consumer intelligence, purchase mode, and character of goods
Overall Impression Test: Originating from Parle v. JP, emphasises creating an impression from the trademark as experienced in the marketplace
Descriptive vs Deceptive: Side-by-Side
| Feature | Descriptive Similarity | Deceptive Similarity |
|---|---|---|
| Definition | Common descriptors (e.g., “Super,” “Low-absorb”) | Marks that create likelihood of confusion or deception |
| Test Applied | Whether term is generic/descriptive & if distinctiveness gained | Holistic test: visual, phonetic, conceptual, from typical consumer view |
| Protection Given When | Acquires distinctive meaning (“secondary meaning”) | Likelihood of confusion/association with another mark |
| Cases | Marico v. Agro Tech; Soothe v. Dabur | Officer’s Choice v. Fauji; KRBL v. Praveen; Castrol v. Kapil |
| Outcome | No exclusive rights over descriptive elements | Infringement found; injunctions and damages possible |
Key Takeaways from Delhi High Court
Descriptive elements are not protectable unless they have acquired distinctiveness through long or exclusive use.
Deceptive similarity requires a holistic assessment—marks are compared whole, and dominant features (like “Gate” in rice) may determine the outcome.
The test remains the average consumer with imperfect recollection; courts need not show actual confusion, just likely confusion or association
Intent matters—deliberate imitation (e.g., packaging, phonetics, brand concept) strengthens infringement claims
Notable Cases & Citations
Soothe Healthcare v. Dabur India Ltd. (11‑Jul‑2022) – “Super” is descriptive, not deceptively similar
Allied Blenders v. Govind Yadav (2019) – “Officer’s Choice” vs. “Fauji” found phonetically and conceptually distinct
KRBL Ltd. v. Praveen Kumar Buyyani (2025) – “India Gate” vs “Bharat Gate” seen as deceptively similar chips in word and concept
Castrol Ltd. v. Kapil & Anr. (18‑Feb‑2025) – Intentional copying of “ACTIV(ACTIBOND)” found clearly infringing
Summary
✅ Descriptive Similarity: Not infringing unless the mark has developed distinctiveness.
⚠️ Deceptive Similarity: If the mark bears overall resemblance—be it phonetic, visual, or conceptual—it may lead to infringement.
The Delhi High Court underscores that overall similarity and likelihood of confusion are central, while descriptive terms are given leeway to ensure fair competition—unless they've become distinctive.
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