Similarity of marks is an issue that trademark law in India has consistently dealt with over time, thus evolving crucial principles. As per judicial dicta, there should be only one trademark, one source & one proprietor. Thus, it is neither permissible nor advisable to use a mark similar to a registered mark. The foremost criteria used by authorities to make out a case of similarity or deceptive similarity is whether any confusion would be caused in the mind of an unwary purchaser.
The issue came up for deliberation in the Delhi High Court in the case of Infosys Technologies Limited vs Marwadi Inforys Technologies Ltd (2009 (41) PTC 622 (Del.)). Infosys Technologies Limited, incorporated in 1981prayd for an order of permanent injunction against Marwadi Inforys who was engaged in the business of computer related products under the trade name "INFOSYS".
Infosys Technologies Limited contended that Marwadi Inforys must be restrained from using the trademark "INFOSYS" or "INFY" in isolation or in conjunction with any other mark and passing off their goods and services by marketing or advertisements under the trademark "Further, Infosys Technologies also prayed for an order for delivery up of all goods, bearing or capable of reproducing the trademark "INFOSYS", claiming damages worth Rs.20 Lakhs.
Infosys Technologies submitted that they had conducted a survey around August 2003, and had discovered Marwadi Inforys Technologies was using the trademark "INFOSYS" in their business of website development, web based software development, domain name registration and stand alone turnkey software projects, which is similar to the business of Infosys Technologies. Under these circumstances Infosys Technologies served upon Marwadi Inforys Technologies a legal notice twice, dated 6-8-2003 and 16-1-2007, but the Marwadi Inforys Technologies showed complete disregard to the legal notice and continued using the infringed mark "INFOSYS" in its commercial activities which has confused and mislead the public at large
The Delhi Court held that Marwadi Inforys had indulged in the infringement of trademark "INFOSYS" which belonged to Infosys Technologies, and hence Infosys Technologies must be granted an order of injunction. Regarding the claim of damages, the court held that as the assessment of damages is based on cogent evidence furnished for the purpose, which had not been provided by Infosys Technologies. In this view, the award was restricted to costs of the proceedings.
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