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NEUTRAL CITATION NO: 2022/DHC/001471 element which is not already covered by the words "likely to deceive" and it has sometimes been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks -- the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff."

37. In K.R. Chinna Krishana Chettiar vs. Shri Ambal and Co., Madras and Anr., (1969) 2 SCC 131, the question before the Supreme Court was whether the proposed mark of the Appellant was deceptively similar to the Respondent's mark. It was held that the resemblance in the two marks must be considered with reference to the ear as well as the eye, as ocular comparison may not always be a decisive test. Therefore, even if there is no visual resemblance between the two competing marks, a close affinity of sound could be a decisive factor. On the basis of phonetic similarity and affinity of sound between the words 'AMBAL' and 'ANDAL', the Supreme Court held that they were deceptively similar, despite the fact that they had distinct meanings and represented separate divinities. Reliance was placed This is a digitally signed Judgement.

42. Coming to the present case and applying the principles enunciated in the aforesaid judgments viz. (i) competing marks have to be seen as a whole;

(ii) marks are not to be kept side by side for comparison and are not to be dissected or compared syllable by syllable; (iii) if the marks are visually and/or phonetically identical or similar, confusion/deception is likely to This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001471 occur; and (iv) public interest supports lesser degree of proof showing confusing similarity in case of trademarks in respect of medicinal and pharmaceutical products, in the opinion of this Court, Plaintiffs' registered mark ISITE, when compared as a whole with the impugned mark EYESITE, leaves no doubt that they are phonetically identical and visually similar. When both the words are articulated, an ordinary prudent man would be unable to distinguish them by their sounds and there would be likelihood of deception and confusion on account of their phonetic identity. While it may be true that the trademark of the Plaintiffs has a prefix 'I' to the word 'SITE' while that of the Defendants has a prefix 'EYE' and a critical comparison of the two marks may disclose some difference, however, the likelihood of confusion and deception on account of phonetic identity and overall similarity of the two marks, when taken as a whole, cannot be ruled out albeit the test is of phonetic similarity and not identity. It needs no reiteration that phonetic identity or similarity is an important index of similarity or deceptive similarity of one mark against the other competing mark and the tests of phonetic, visual and structural similarity or identity are disjunctive and not conjunctive.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001471

45. On the above analysis, this Court comes to the conclusion that use of the marks "EYESITE"/ ' ' by the Defendants, which are deceptively similar to the mark "ISITE" of the Plaintiffs, is likely to confuse the consumers of similar products and dilute the distinctive character of the said mark, resulting in erosion of their goodwill and reputation. Courts have repeatedly applied a lower threshold of proving deceptive similarity in the case of medicinal products, since confusion between the two marks is likely to have a deleterious effect on the public. The adoption and use of the impugned marks by the Defendants in relation to health supplements, in my view, meets the said threshold and amounts to infringement of the Plaintiffs' statutory rights in the registered trademark "ISITE".