Anchor Electronics and Electricals Pvt. Ltd and Encore Electricals Ltd are at loggerheads in the instant case.1 Encore sought an appeal against the interlocutory order granted in the suit instituted by Anchor for infringement and passing off its trademark.
The significance of the decision lies in the approach of the Court looking at and interpreting the deceptive similarity between the marks 'Encore' and Anchor'. The Court refuting the defense that 'Encore' is a word having its origin in French word said that it is consciousness of the fact that both the marks are used in the Indian market and it is a consumer in India whose observation and assessment must guide the decision making. The Court stressed on the situation that manner in which the rival marks would be ordinarily pronounced and the manner in which the marks would be written in Indian languages constitute an important indicator of establishment of a case of deceptive similarity. Conforming with the decision of learned Single Judge that the manner in which the marks would be written in the Gujarati (a vernacular language specific to Gujarat state in India) and Devanagari (the script of the Hindi language widely spoken in the Indian Northern region and also the Official language of India) scripts bear a close resemblance enough for an intending purchaser of the product of the defendant to be led to believe that the goods of the defendant have associated with them the goodwill and reputation associated with the plaintiff's mark. The common test applied in this case is whether the ordinary customer is likely to be led to believe that 'Encore' is associated with the mark 'Anchor' and the trading style of the plaintiff.
The instant case may also trigger the debate that is it feasible and practical to take into consideration, by the Trade Mark Registry, the written impression in vernacular of the trademarks which come up for registration while examining for the suitability of registration.
Taking the insurmountable instances of infringement and passing off of trademarks and phonetic similarity already a well established benchmark, the deceptive similarity inherent in the vernacular script of the trademarks can be a critical thing to be established in such cases, but only after taking into consideration the trade channels, intending purchaser of the product and the prevalent language. At the same time the deceptive similarity in the vernacular script as a ground for refusal to register a trademark may necessitate building up support structures.
1 Encore Electronics Ltd versus Anchor Electronics and Electricals Pvt. Ltd 2007 (35) PTC 714 (Bom.)
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