In an action of passing-off on the basis of unregistered trademark, what factors are to be considered while deciding the question of the deceptive similarity under the Trademarks Act, 1999.

In an action of passing-off on the basis of an unregistered trademark, the owner of the trademark can lodge a case if his trademark is used by some other person. The ownership of a trademark is decided by its usage in commercial transactions. While deciding the question of deceptive similarity under the Trademarks Act, 1999, the following factors are broadly considered, as stated by the Supreme Court in the case of Mahendra and Mahendra Paper Mills Ltd. Vs. Mahindra and Mahindra Ltd. [AIR 2002 SC117] : Nature of the Marks: Whether the marks are word marks, label marks, or composite marks (i.e., both words and label works). Degree of Resemblance: The extent of resembleness between the marks, including phonetic similarity and hence similarity in idea. Nature of Goods: The nature of the goods in respect of which the marks are used as trademarks. Similarity in Trade: The similarity in nature, character, and performance of the goods of the rival traders. Class of Purchasers: The class of purchasers who are likely to buy the goods bearing the marks, considering their education, intelligence, and the degree of care they are likely to exercise in purchasing and/or using the goods. Mode of Purchase: The mode of purchasing the goods or placing orders for the goods. Other Surrounding Circumstances: Any other surrounding circumstances which may be relevant in assessing the extent of dissimilarity between the competing marks. It is important to note that weightage to be given to each of the aforesaid factors depends upon the specific facts of each case, and the same weightage cannot be given to each factor in every case.