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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:

  1. The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/ geographical origin/ device/ letters/ numerals/ combination of two or more of the above
  2. The degree of resemblance between the competing marks and essential features thereof i.e. phonetic, visual or structural.
  3. The nature of the goods in respect of which they are used or likely to be used as trade marks.
  4. The similarity of the nature, character, and purpose of the goods of the rival traders.
  5. The class of purchasers who are likely to buy the goods bearing the marks.
  6. The mode of purchase of the goods or of placing orders for the goods.

Any other surrounding circumstances

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