Likelihood of Confusion: Numerals as Trade Marks
In this post we will be analyzing whether a numeral Trade mark can be deceptively similar to another mark consisting of different numerals. This issue has recently been dealt with by the Delhi High Court in the case Mona Aggarwal & Anr vs. Glossy & Paints Pvt. Ltd. & Anr.
The brief facts of this case are that, the Plaintiff i.e. Glossy Colour Paint Pvt. Ltd is said to have adopted and used over the mark “1001” since 1946. The mark is claimed to be distinct mark where the mark ‘1001’ is represented with the zeroes having eyes and being used in relation to paints, distemper, varnishes, etc. The Defendant is the proprietor of Multi Group of Suppliers, the defendants are carrying out their business using the name “6004” (Label) which is claimed to be deceptively similar and a substantial reproduction of the “1001” label of the plaintiffs.
The learned Single Judge Bench after analyzing and comparing the two trademarks and applying the test of “a man of average intelligence with imperfect recollection” made the observation that prima facie the mark of the defendant was indeed deceptively similar to that of the plaintiff. The similar ‘Eye Device’ and the colour combination were likely to confuse the consumers. As a result an order was passed, restraining the defendant from using the impugned trademark for any further trade purposes. The present appeal was filed by the defendant against the judgement of learned Division Bench. The defendant proposed to change its mark to prevent further litigation. However, the Plaintiff continued to object to the defendant’s mark and claimed that the numeral ‘6004’ would still be considered as deceptively similar to its ‘1001’ mark and as a result would cause confusion.
The Court assessed the case and held that one party’s adoption and use of a numeral as a trademark for its products does not prima facie bar another party from adopting different numerals as a trademark for their goods. The appeal was disposed of with the direction that the defendant may use the proposed label and shall not use the label impugned in the suit or any label or mark which may be considered deceptively similar to the label/mark of the plaintiff. The defendant must also keep accounts of all the sales and furnish half-yearly statements to the court in the form of affidavits of all the sales made by it in respect of the said goods bearing the above-referred label. The appeal was accordingly disposed of leaving the parties to bear their own costs. Herein the defendant was granted the leave to change its mark so as not to cause any confusion with the Plaintiff’s mark. However, the answer as to whether the use of the numeral ‘6004’ with the proposed changes would still amount to an infringement is to be decided at trial. The Court directed both parties to the suit, to proceed to trial.
Authored by Ryan Mendonca