Trademarks are important for businesses in order to distinguish their goods or services from competitors, maintaining brand recognition and building consumer trust. However, when a trademark resembles with another, it can lead to confusion among consumers and undermine the purpose of the original trademark. This issue, known as deceptive similarity, is a critical concept in trademark law in India, governed by the Trademark Act, 1999. This article explores the concept of deceptive similarity under trademark law, covering its definition, legal framework, determining factors, types, judicial interpretations and its impact on consumers and businesses, supported by landmark and recent case studies.
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What is the Concept of Deceptive Similarity Under Trademark Law?
Deceptive similarity refers to a situation where a trademark is so similar to another that it is likely to mislead or confuse consumers about the source of goods or services. According to Section 2(1)(h) of the Trademark Act, 1999, a mark is deemed deceptively similar if it “so nearly resembles that other mark as to be likely to deceive or cause confusion.” This resemblance can occur in appearance, sound or meaning, even if the marks are not identical, it can potentially allow one party to capitalize on the goodwill of another’s established trademark.
Legal Provisions Governing Deceptive Similarity Under Trademark Law
The Trademark Act, 1999, provides a robust framework to address deceptive similarity through several key provisions:
Section 2(1)(h): Defines deceptive similarity, emphasizing the likelihood of consumer confusion due to close resemblance between marks.
Section 11(1): Prohibits the registration of a trademark that is identical or deceptively similar to an existing registered mark, particularly if it may confuse or deceive the public.
Section 29: Addresses trademark infringement, including scenarios where a deceptively similar mark is used for similar goods or services, leading to consumer confusion.
These provisions ensure that trademarks remain distinctive, protecting both consumers and trademark owners from deceptive practices.
Read about What is a Trade Secret?
Factors Considered in Determining Deceptive Similarity
Courts and trademark authorities evaluate several factors to determine whether two marks are deceptively similar:
Nature and Purpose of Goods or Services: The similarity in the type and purpose of goods or services increases the likelihood of confusion.
Class of Consumers: The demographic, education level, and purchasing behavior of consumers are considered, as less discerning consumers may be more prone to confusion.
Visual, Phonetic, and Structural Similarity: Marks are compared for their appearance, pronunciation, and structure to assess potential confusion.
Market Reputation: The established reputation and distinctiveness of the original mark influence the degree of protection it receives.
Intention to Deceive: While not mandatory, evidence of intent to deceive can strengthen a case, though the focus remains on the likelihood of confusion.
These factors are assessed holistically to determine the potential for consumer confusion.
Types of Similarity
Deceptive similarity can manifest in three primary forms, including visual similarity, phonetic similarity and conceptual similarity. Given below is a brief introduction of these types along with examples:
Visual Similarity: Marks that look similar, such as those sharing common syllables, prefixes, suffixes, or designs (e.g., “PUMA” vs. “COMA”).
Phonetic Similarity: Marks that sound alike, which is particularly relevant in oral communication (e.g., “Zegna” vs. “Zenya” or “Fevikwik” vs. “Kwikheal”).
Conceptual Similarity: Marks that convey similar ideas or themes, even if they differ visually or phonetically (e.g., “Gluvita” vs. “Glucovita” or “Lakme” vs. “Likeme”).
These types are often considered together, as a combination of similarities heightens the risk of confusion.
Also, Get to Know About Infringement of Geographical Indication.
Case Studies and Judicial Pronouncements
Indian courts have shaped the understanding of the concept of deceptive similarity under Trademark Law through numerous landmark cases and providing clarity on its application:
Delhi Lakme Ltd v. Subhash Trading (1997): The Delhi High Court ruled that “Lakme” and “LikeMe,” both used for cosmetics, were deceptively similar due to phonetic resemblance and are likely to confuse consumers.
M/s Mahashian Di Hatti Ltd. v. Mr. Raj Niwas (2001): The court found that the “MDH” logo (red background with three hexagons) and the “MHS” logo (red hexagonal background) were deceptively similar, posing a risk of consumer confusion.
Mahendra and Mahendra Paper Mills Ltd. v. Mahindra and Mahindra Ltd (2001): The Supreme Court held that “Mahendra & Mahendra” was phonetically similar to “Mahindra,” a well-established mark, constituting infringement due to its potential to mislead consumers.
Starbucks Corporation v. Sardarbuksh Coffee & Co. (2015): The Delhi High Court determined that “Sardarbuksh Coffee & Co.” was deceptively similar to “Starbucks” due to visual, phonetic, and conceptual similarities, particularly in the coffee industry.
KRBL Limited v. Praveen Kumar Buyyani & Ors. (2025): In a significant recent ruling, the Delhi High Court found that “BHARAT GATE” was deceptively similar to “INDIA GATE,” both used for rice. The court noted phonetic similarity, shared conceptual themes and the copying of essential features, concluding that the respondent deliberately sought to exploit the appellant’s goodwill. The court reinstated an injunction by overturning a prior Commercial Court decision.
These case laws illustrate the judiciary’s approach of protecting the distinctiveness of trademarks and preventing consumer confusion.
Impact on Consumers and Trademark Owners
Deceptive similarity has significant consequences on consumers and tradmark which can include mistaken purchases leading to discomfort in consume and simultaneously erode the goodwil of trademark:
Consumers: Confusion caused by deceptively similar marks can lead to mistaken purchases, potentially resulting in dissatisfaction or, in sectors like pharmaceuticals, serious health risks.
Trademark Owners: The use of deceptively similar marks can dilute a brand’s distinctiveness, erode its goodwill, and lead to financial losses due to reduced market share.
Legal Tests for Deceptive Similarity
It's not very easy to detect the similar trademark which can result as deceptive in nature, and to combat that, the judiciary employ established tests to assess deceptive similarity:
Rule of Anti-Dissection: Marks are evaluated as a whole, not broken into parts, to capture their overall impression.
Test by Corn Products (1959): Derived from Corn Products Refining Co. v. Shangrila Food Products Ltd., this test considers the mark holistically, from the perspective of a consumer with average intelligence and imperfect recollection, without side-by-side comparison.
These tests ensure a standardized approach to evaluating the likelihood of confusion.
Summary
Deceptive similarity rule safeguards the integrity of trademarks and protects consumers from confusion. The Trademark Act, 1999, provides a clear legal framework, reinforced by judicial interpretations in cases like Delhi Lakme Ltd v. Subhash Trading and KRBL Limited v. Praveen Kumar Buyyani & Ors. (2025). By addressing visual, phonetic and conceptual similarities, the law ensures that trademarks remain distinctive, fostering fair competition and consumer trust. As businesses continue to innovate, the concept of deceptive similarity under Trademark Law remains vital in maintaining market clarity and protecting brand identity.
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Concept of Deceptive Similarity under Trademark Law: FAQs
Q1. What is the concept of deceptive similarity under trademark law?
Deceptive similarity in Trademark Law occurs when a trademark closely resembles another, likely causing consumer confusion about the source of goods or services.
Q2. What is an example of a deceptive mark?
“Fevikwik” vs. “Kwikheal” – phonetically similar marks for adhesive products, potentially confusing consumers.
Q3. What is Section 27 of the Trademark Act?
Section 27 prohibits trademark infringement lawsuits for unregistered trademarks, except in cases of passing off.
Q4. What is Section 17 of the Trademark Act case law?
Section 17 grants exclusive rights to a registered trademark’s proprietor. Nandhini Deluxe v. Karnataka Co-operative Milk (2018) clarified distinctiveness under this section.
Q5. What are deceptive markings?
Deceptive markings are trademarks that closely resemble another mark, causing confusion about origin, often involving visual, phonetic, or conceptual similarities.
