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21.4. It is settled - indeed, practically axiomatically by now -

that the possibility of likelihood of confusion, for the purpose of trade mark infringement, has to be assessed from the perspective of a customer of average intelligence and imperfect recollection.16 21.5 "Likelihood of confusion", by a consumer of average intelligence and imperfect recollection, is all that is needed.

"Confusion", again, need not extrapolate, in every case, to the consumer mistaking one mark for the other. It is enough - as Section 29(4) itself clarifies - if the similarity between the marks conveys an impression of "association" between them, to the mind of such a consumer. Again, all that is needed is "initial interest confusion"17, without placing the marks side by side. In other words, if, on seeing the defendant's mark some time after the first, the consumer of average intelligence and imperfect recollection is likely to pause, even if for the fraction of a minute, and ponder as to whether it was not the same, or at was not associated with, the plaintiff's mark which he had seen earlier, the tort of infringement stands, ipso facto, committed by the defendant. The following passage from Kerly's Law of Trade Marks and Trade Names, 9 th Edn, was approvingly cited by the Supreme Court, in Parle Products (P) Ltd v J.P. & Co.18.

(Emphasis supplied) 21.6 Having reproduced the above passage from Kerly, the Supreme Court, in Parle products, went on to hold:

"9. It is, therefore, clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him."

(Emphasis supplied) CS (COMM) 284/2020 KRBL Limited Vs. Mr. Praveen Kumar Buyyani & Ors. Page no. 30 of 44 In view of the express words employed by Section 29(2) of the Trade Marks Act, it is clear that the propensity of the average consumer to accept the defendant's product, if offered to him, owing to the similarity between the plainitiff's and defendant's marks, cited as a definitive test in Parle Products may as much be because she, or he, confuses the defendant's mark for the plaintiffs, as because, owing to the similarity between the two marks, he believes the existence of an association between them. A fascinating study on the contours of confusion is to be found in Shree Nath Heritage.

21.7 The opening sentence in the above paragraph from Parle Products introduces a further concept of "idea infringement". If, in other words, the idea conveyed by one mark is copied by another, it amounts to idea infringement which, too, is prohibited as likely to result in confusion in the mind of the consumer of average intelligence and imperfect recollection, as the above passage from Parle Products holds. The logic is apparent. The human mind captures ideas conveyed by images, or words, and often it is the idea which remains impressed on the mind. The conveying of the same idea by two marks, therefore, clearly results in likelihood of the human mind - especially if average in intellect and imperfect in recollection - confusing one for the other, or at least presuming an association between them. Instances where this Court has held "idea infringement" to exist are to be found in Holyland Marketing (P) Ltd v Vijay Pal Vineet Kumar & Co 19, Hari Chand Shri Gopal v Evergreen International20 , Bvlgari SPA v Notandas Gems (P) Ltd21 and Pernod Ricard India Pvt Ltd v A.B. Sugars Ltd22.