Gnv Commodities Pvt Ltd V/S Tykekart Technologies Pvt Ltd [FAO (COMM) 192/2023]
The Delhi High Court has held that the trademark Dogkart and Dogzkart to be deceptively similar.
The division bench of Justice Yashwant Varma and Justice Dharmesh Sharma observed that the Trial Judge appears to have erred in failing to allude to either the phonetic or the visual similarity test. It also appears to have failed to bear in consideration that the average consumer may not scrupulously scrutinise the two competing marks. The test would have to be the immediate impression that may be gathered by the average consumer and whether that would give rise to a likelihood of confusion.
The appellant / plaintiff is stated to be the registered proprietor of the device mark “DOGKart.in” under Classes 3, 28 and 35 of the Trade Marks Act, 1999.
The plaintiff had brought the suit for infringement and passing off under Sections 134 and 135 of the Act based on the allegation that the defendant / respondent had adopted the trademark “DOGZKART” as well as a deceptively similar domain name and thus liable to be injuncted.
Although the defendant / respondent is stated to have applied for registration of the trademark “DOGZKART”, the same is yet to be granted.
The Trial Judge has apart from a comparative examination of the logos of the plaintiff / appellant and the defendant / respondent come to conclude that the words forming part of the marks are dissimilar and are not likely to confuse.
The court noted that the aspect of “deceptively similar marks” is an issue which is no longer res integra. The test was formulated to be of the requirement of putting the two words together and they being judged both by look as well as by sound. It is these principles which have led to Courts formulating the visual and phonetic similarity tests in the case of infringement actions.
The court found that the true test depends on the first impression and a requirement of the marks being compared as “wholes”. These principles clearly appear to have been overlooked by the Trial Judge while passing the order.