Even Brief Or Momentary Confusion In Mind Of Consumer Sufficient To Establish Trademark Infringement: Delhi High Court
The Delhi High Court has held that even a momentary confusion between two competing trademarks in the mind of a consumer is sufficient to constitute trademark infringement.A division bench of Justices Vibhu Bakhru and Sachin Datta thus granted interim relief to US based casual and sports apparel brand Under Armour in its appeal against an Indian company manufacturing clothes and footwear...
The Delhi High Court has held that even a momentary confusion between two competing trademarks in the mind of a consumer is sufficient to constitute trademark infringement.
A division bench of Justices Vibhu Bakhru and Sachin Datta thus granted interim relief to US based casual and sports apparel brand Under Armour in its appeal against an Indian company manufacturing clothes and footwear under the trademark 'AERO ARMOUR'.
A single-judge bench had earlier denied relief to Under Armour by applying the 'Initial Interest Confusion Test'.
The Initial Interest Confusion Test recognizes that confusion in the minds of the customers arises only at the stage prior to consummating the purchase. However, at the time of completing the transaction, there is no doubt in the customer's mind regarding the origin of the goods.
In the company's appeal however, the division bench held that confusion, even if limited to the initial stage, is sufficient to satisfy the condition of deceptive similarity as contemplated under Section 29 of the Trade Marks Act, 1999.
“In our view, if the customer looking at the impugned marks associates the same with the appellant's marks even though for a brief period, the appellant's trademarks would be infringed on the plain reading of Section 29(1)/ Section 29(2) and even Section 29(4) of the TM Act. The duration of the confusion in the minds of the customer is not material. The fact that the customer is confused, even if it be momentarily, would be sufficient to establish infringement of trademark.”
It reasoned that in some cases – particularly when the senior trademark is a famous or a well-known mark – it may serve the infringer's purpose merely to capture the customer's attention.
“In some cases, it may be sufficient for a new entrant to merely attract the customers of a well-known brand to look at its product. In some cases, it would be enough for a new entrant to get its foot in the door. It is not necessary that the customer must necessarily be deceived in buying the product under a junior mark for the registered senior mark to be infringed. If such the initial interest is elicited by any similarity with the well-known trademark, the requirement of Section 29 of the Act would be satisfied.”
The Court also noted that in this case, both the companies were using similar trade channels for sale on e-commerce platforms.
It thus held that a customer of average intelligence and imperfect recollection who comes across the respondents' products on any of the e-commerce platforms used by both parties, may wonder whether there is a connection with Under Armour.
“Thus, the question to be considered by the court was essentially whether a customer looking at the impugned trademarks would be led to believe that the same is associated with the appellant's trademark, even it be for a brief moment,” said the Court.
It added that the fact that he may on a closer examination of products and enquiries find that the impugned trademarks are not associated with the appellant's trademarks would not take away from the fact that the impugned marks bear a similarity with the appellants trade mark, which led to the confusion.
Similarly, the Court held that if a customer of average intelligence and imperfect recollection, who seeks the appellant's product Under Armour is for a brief moment deceived to think the respondent's product are associated with it, the appellants action for infringement has to be sustained as the test of likelihood of confusion would stand satisfied.
As such, it restrained the respondent from using the impugned marks or any other mark deceptively similar to the appellant's word mark 'Under Armour' till the disposal of the main suit.
Appearance: For the Appellant : Ms. Swathi Sukumar, Sr. Adv. with Mr. S. Bansal, Mr. Rishi Bansal, Mr. Mankaran Singh, Mr. Kartik Malhotra, Mr. Rishabh Aggarwal & Mr. Ritik Raghuvanshi, Advocates. For the Respondent : Mr. J. Sai Deepak, Sr. Adv. with Mr. Samik Mukherjee, Mr. Manosij Mukherjee & Mr. Abhishek Avabhani, Advs
Case title: Under Armour Inc v. Anish Agarwal & Anr
Citation: 2025 LiveLaw (Del) 637
Case no.: FAO(OS) (COMM)