Riddhi Glass Works Ltd., a company engaged in manufacturing decorative glass sheets applied for registration of a particular ornamental pattern used on its glass products under the Designs Act, 2000. The company claimed

Answer 4(a) The Trademarks Act, 1999 lays down absolute and relative grounds for refusal of registration of Trade Marks under the Act. Barring a few exceptions, absolute grounds refuse the registration absolutely whereas relative grounds are applicable only when there already exists a trademark in comparison to which a new Trademark is not registerable. Hence when dealing with the question of deceptive similarity, we need to review the relative grounds of refusal as has been enunciated in Section 11 of the Act. Section 11 states that a mark is not registered if because of (i) its identity with an earlier trademark and similarity of goods and services covered by that trademark or (ii) its similarity to an earlier trademark and its identity or similarity of goods and services covered by the trademark, there exists a likelihood of confusion on the part of the public which includes the likelihood of association with the earlier trademark. Deceptive similarity is defined under Section 2(1)(h) of the Trade Marks Act, 1999, as a mark that so nearly resembles another mark that it is likely to deceive or cause confusion. The core legal principles are: Comparison of Marks as a Whole : It is incorrect to take a part of one word and compare it with a part of another; the overall structural and phonetic similarity must be evaluated. The marks must be compared as a whole, as the overall impression on an ordinary purchaser is what matters. Standard of Average Consumer : The similarity must be judged from the perspective of a purchaser of average intelligence and imperfect recollection. The test is what an ordinary person of average intelligence and imperfect recollection would perceive, not what a careful analyst would detect. Ocular Comparison : The test is often "what appeals to the eye" or the "look and feel" of the marks. In the case of word marks, phonetic similarity is equally important. Nature of Goods : The degree of care exercised by consumers varies depending on the product. For medicinal products, even a slight similarity can be dangerous as it may lead to life-threatening consequences. A stricter standard is applied in such cases. In Amritdhara Pharmacy v. Satya Deo Gupta AIR 1963 SC 449 , the word 'Lakhmandhara' for a medicinal preparation was refused registeration as a trade mark on the ground that it could cause confusion in the minds of the general public, being deceptively similar to a registered Trademark 'Amritdhara'. The Court noted that a critical comparison of the two names might disclose some points of difference but an 'unwary purchaser of average intelligence and imperfect recollection' would be deceived by the overall similarity of the two names having regard to the nature of the medicine he was looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with a similar name. The Court noted that ot was not right to compare one part of the word with a part of another word. Indeed, the two words should be compared as a whole. In National Sewing Thread Co Ltd. v.James Chadwick and Bros. Ltd, AIR 1953 SC 357 , the Supreme Court held that the real question was to see how a purchaser who must be an average man of ordinary intelligence would react to a particular Trademark, what association he would form and in what respect he would connect it with the goods he was purchasing. In Parle Products v. J.P. 7 Co. AIR 1972 SC 1359 , the Apex Court observed that the Packets of the two products were practically of the same size, the colour scheme of the wrappers was almost the same, the design on both though not identical, bore a striking resemblance so much so that one could be easily mistaken for the other. The brand names were similar and there was a good deal of similarity between the two writings. The Defendants wrapper was held to be deceptively similar to the registered Trademark. In Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73 was a landmark case wherein the Apex Court set out tests for deciding the question of deceptive similarity between the drug named Falcitab and Falcigo. The following factors were to be considered: The nature of the marks; whether they were word marks or label marks or composite marks The degree of resemblance between the marks; phonetic similarity The nature of the goods in respect of which they were used The similarity, nature and the performance of the goods of rival traders The class of purchasers who were likely to buy the good, their education, intelligence and the degree of care they were likely to exercise in buying the goods The mode of purchasing the goods Any other surrounding circumstances The aforesaid case laws have thus laid down comprehensive legal principles governing deceptive similarity.