Legal Question in Intellectual Property in India

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In the case PARLE PRODUCTS (P) LTD. V J.P. & CO. MYSORE, it was held that "the test for determination of a trade mark to be deceptively similar to the registered one would be, if a person would be likely to accept the another one, if offered, instead of original one".

The factors to be taken in consideration for the deceptive similarity are as follows:

(i) The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/ geographical origin/ device/ letters/ numerals/ combination of two or more of the above

(ii) The degree of resemblance between the competing marks and essential features thereof i.e. phonetic, visual or structural.

(iii) The nature of the goods in respect of which they are used or likely to be used as trademarks.

(iv) The similarity of the nature, character, and purpose of the goods of the rival traders.

(v) The class of purchasers who are likely to buy the goods bearing the marks.

(vi) The mode of purchase of the goods or of placing orders for the goods.

In my view, the two names are deceptively similar and hence you should refrain from using the name if you want to avoid litigation. Also, Section 33 of the Trade Marks Act which states that if the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark to apply for a declaration that the registration of the later trade mark is invalid, or oppose the use of the later trade mark, unless the registration of the later trade mark was not applied in good faith.

You should seek the advice of an expert in this regard. You can call me at 09555 507 507 or send me a mail at [email protected].

-Regards

Advocate Pooja

www.lawkonect.com