Indian Kanoon - Search engine for Indian Law

13.The likelihood of confusion or deception amongst the consuming public is a 'sine qua non' element to be seen by the Trade Mark Registry while deciding whether to grant trade mark registration for a particular trade mark or not. There are various parameters that are taken into consideration while assessing the degree of likelihood of confusion between two trademarks, such as, a) the goods and services under the disputing marks, b) the class of consumers and c) the trade channels involved, inter alia. The Triple Identity Test, which is an amalgamation of the aforementioned three parameters, is often relied upon by the Courts to assess the similarity between two marks and/or likelihood of confusion amongst the public. It is a settled principle of law that deceptive similarity is adjudged based on the visual, phonetic, and structural similarity between the marks in question. The process of assessing similarity between two composite marks, births a direct conflict between the 'Rule of Anti-Dissection' and the 'Rule of Dominant Feature'. While the spirit of the former rule has been captured by https://www.mhc.tn.gov.in/judis Sections 15 and 17 of the Trade Marks Act, 1999, the latter is a product of many judicial pronouncements.

14.A plain reading of Sections 15 and 17 of the Act evidences the fact that the legislative intent behind these provisions is that when a trademark consists of several elements, it should be viewed as a whole, i.e, as an indivisible unit and unless a part of such a composite trademark is a separate subject of trademark protection, the proprietor has no exclusive right on a part of the composite mark alone. The rule of anti-dissection is based on the basic assumption that an ordinary prospective buyer would be impressed by the composite mark as a whole and not by its component parts. Hence, it promotes the idea that 'technical gymnastics' should not be done in an attempt to find some minor differences between conflicting marks.

15.On the other hand, over the years, the Constitutional Courts have propounded a rule of dominant feature which means that a mark is said to be infringed by another trader if even without using the whole of it, the latter uses one or more of its essential features. This rule is based on the understanding that a consumer of average intelligence having an imperfect https://www.mhc.tn.gov.in/judis recollection might only retain the prominent part of a composite mark. The reflection of the rule of dominant feature could be seen in Section 11(b) of the Trade Marks Act which states that a mark ought not to be registered if the said mark is similar to an earlier mark and is being used with respect to similar or identical goods/services and capable of causing confusion and deception amongst the public.

23.It is also to be noted that the trade mark of the appellant as seen from the label is in Hindi, whereas the expression "GANGA PRODUCTS, https://www.mhc.tn.gov.in/judis BANGALORE" in the first respondent’s trade mark is only in English. As observed earlier, the deity 'SHIVA' cannot be treated as an essential feature of any trade mark as nobody can claim exclusive monopoly to use the name of a deity. Therefore, this Court will have to assess the composite mark of the appellant and the composite mark of the first respondent by applying the rule of anti-dissection as laid down under Sections 15 and 17 of the Trade Marks Act, 1999. The rule of dominant feature can never be applied to the case on hand since any registered proprietor of a trade mark can never claim monopoly to use the name of a deity.