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Test For Deceptive Similarity Of Trade Marks
The test for deciding the deceptive similarity of the competing mark in an action for infringement or in an action of passing off are similar. In the case PARLE PRODUCTS (P) LTD. V J.P. & CO. MYSORE2 , it was held that "the test for determination of a trade mark to be deceptively similar to the registered one would be, if a person would be likely to accept the another one, if offered, instead of original one".
In the case of a statutory right, once the Court comes to the conclusion that the defendant has adopted a mark, which is identical or deceptively similar mark to the registered mark and is used in respect of same or similar goods, no further evidence is required to be produced by the registered proprietor of the mark to establish infringement. On the other hand, if a person seeks to enforce common law rights based on prior use, the defendant may escape liability by showing that the added matters used in conjunction with the mark are capable of distinguishing his goods from those of the others.
The factors to be taken in consideration for the deceptive similarity are as follows:
Any other surrounding circumstances
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