The foremost criteria for determining confusing or deceptive similarity is whether A common person will be confused or not, which are further determined by the
- PHONETIC similarity of the Trademark,
- The Getup
- Color combination
- Design and artwork of the label
- Packing material etc.
Deception can arise with regard to:
- The nature of the Trademarks, whether the marks are words, labels or composite marks;
- The degree of resemblance between the trademarks, phonetic or visual or similarity in idea;
- The nature of goods or services in respect of which they are used as trademarks;
- The similarity in the nature, character, and performance of the goods/services of the rival Traders/service provider the class of purchasers/customers who are likely to buy the goods or avail the services, on intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
Criteria for a court of law or tribunal for determining deceptive similarity
A deceptive Trademark can be said to be such a Trademark which is likely to cause confusion in the minds of the buyer.
The most important deciding factor while taking Deceptive Marks into account is that the general public with average intelligence is confused so as to the source of the product.
The most important test is to look for an overall similarity. The expression likely to deceive? is a question largely one of the first impression. It is sufficient if the Court comes to the conclusion it is likely to deceive and that conclusion must be based partly on evidence and partly upon the appeal to the eye of the judge.