Deceptive Similarity And The Global Confusion Doctrine: An Evolving Standard In Trademark Law
- IJLLR Journal
- Jul 24
- 2 min read
Bhavya Sachdeva, B.B.A LL.B. (Hons.), Vivekananda Institute of Professional Studies
ABSTRACT
At the core of trademark case law is the doctrine of confusing or misleading similarity, which is intended to protect both the consumer from confusion and the owner from losing their goodwill in the distinctive marks. Essentially, the doctrine has two purposes: protecting the public interest in consumer confusion in the marketplace and protecting the proprietary interest of trademark owners from being misconstrued or diluted. Courts have historically assessed any similarity in marks by looking at different factors separately and in isolation. The traditional approach involved assessing visual similarities, phonetic similarities, and conceptual similarities individually. But there has been an overall shift toward an analysis of overall confusion or global appreciation, a framework requiring an overall assessment of two competing marks in a commercial environment based on what is viewed through the eyes of an average consumer, over the last 40 years.
This change, spurred by changes to elongated English and European trademark jurisprudence, is evidence of an awareness of the complicated, competitive and visually crowded marketplace where consumers reside. Under the global confusion doctrine, the marks concerned are not separately sliced and diced and considered in isolation, but rather in entirety alongside factors such as the nature of the goods or services, the class of consumers, the mode of purchase, and the surrounding circumstances of trade.
This article will conduct a doctrinal study of the principle of misleading similarity as encapsulated under Section 11(1) and 11(2) of the Trade Marks Act, 1999, meaning the excising of the judicial interpretations, and then impose the same in the wider study of the overall confusion doctrine. It will critically reflect whether the Indian courts, in practice, promote this analysis model, and if so, whether this is doctrinally to be consistent and practical. The article will comparably study developments in the United Kingdom after the birth of the Trade Marks Act 1994 (UK) and when instead applying the law under the case law develop under the Court of Justice of the European Union (CJEU) wherein the global appreciation test has always been used.
Using a method of doctrinal methodology and case law synthesis, this article contends that while Indian courts have exhibited an increasingly willingness to adopt holistic evaluative structures in trademark disputes, a significant degree of inconsistency remains in both reasoning and implementation. When taken in totality, the inconsistency across Indian cases is further compounded by the absence of empirically-grounded, evidence-designed judicial processes to determine consumer confusion in respect of expanding product categories, overlapping trade channels, and advanced cognitive processes representing consumer behaviour. Ultimately, this article calls for a doctrinal clarification and rationalization of Indian law in this regard — one that draws on comparative jurisprudence and is aware of the empirical realities of Indian markets today.
Keywords: Trademark Infringement, Deceptive Similarity, Global Confusion, Consumer Protection, Trade Marks Act, Comparative Jurisprudence
