Deceptive similarity of marks is
commonly argued by attorneys in the cases of trademark infringement
and/or passing off. Deceptive similarity is a very broad term and
includes phonetic similarity, visual similarity and conceptual
similarity but, these are not the only factors that need to be
taken into consideration while deciding cases of trademark
In the case of International
Foodstuffs Co. v Parle Products Pvt. Ltd. the Plaintiff was
the registered owner of the mark 'London Dairy' used for
only for ice-creams. The Plaintiff sued the Defendant alleging that
it had adopted a deceptively similar mark 'Londonderry' for
candies. The Plaintiff's Advocate argued that there was
phonetic similarity between the two marks and that both the marks
were being used in relation to goods specified in class 30
therefore, increasing the likelihood of confusion in the minds of
the public and infringing the Plaintiff's statutory right over
its mark 'London Dairy'. RKD represented the Defendant in
this matter and succesfully countered these allegations by proving
that the words 'London' and 'Dairy' were
publici juris i.e. no one could claim exclusive rights
over the same; also, the goods for which the mark
'Londonderry' was being used were different from that of
the Plaintiff's. RKD also succeeded in proving that the trade
dress adopted by the Defendant for its candies was distinctive in
nature and that the Defendant's house mark 'Parle' was
clearly specified on the packaging, thereby removing the
possibility of confusion, if any, between the two goods.
The Hon'ble Bombay High Court
agreed with the submissions of our lawyer and held that if a mark
was being used solely for ice-creams and no other goods, the
proprietor of the mark could not claim monopoly over the use of the
mark for the unrelated goods. Furthermore, the Court took into
account the price difference between the goods, the Plaintiff's
ice cream was priced at Rupees 80 whereas, the Defendant's
candies were priced at 50paise. This showed that there was no
remote possibility of confusion between the two goods. The Court
reiterated that while determining deceptive similarity between
goods it is also necessary to consider the trade channel and the
goods in question, trademark laws do not grant an absolute monopoly
over the entire class of goods if the mark is not being used for
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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