India: Who Is An Average Consumer With Imperfect Recollection?

1. INTRODUCTION

Recently, on 06.01.2022, a Single Judge of the Delhi High Court denied injunction to the brand owner of "Rooh Afza", namely Hamdard National Foundation (India) ("Plaintiff") in a suit for trade mark infringement brought against Sadar Dawakhana ("Defendant")for its use of  the mark "Dil Afza".¹

While denying the interim injunction, the Court applied the test of confusion from the standpoint of an "average consumer with imperfect recollection". The Court held that although the marks 'Rooh Afza' and 'Dil Afza' are used for similar products (syrup/sharbat), the rival marks were not identical. The Court noted  that the words, 'Dil' and 'Rooh' do not denote the same thing to a common consumer and therefore, there can be no confusion.

The test of an average consumer with imperfect recollection ("Average Consumer test") is not a new concept. It is a test expounded by Courts over a long period of time. Through this article we have tried to breakdown this test for a better understanding of a brand owner. 

2. TEST OF CONFUSION

The Average Consumer is understood to be "reasonably well informed" and, rather than making a direct comparison between the products, he/she relies on the 'imperfect picture of the products that he/she has stored in mind'. The general standard is that of the eventual target purchaser who will not make a careful examination of rival products and marks.

In a trademark infringement/passing off suit, this standard is quite subjective in nature as the similarity of rival marks may vary from customer to customer. While a fixed standard or rule is difficult to define, the Courts view two rival trademarks from the perspective of a consumer with average intelligence and imperfect recollection.  

The Average Consumer test has stood against the test of time and has been explicated by several Courts in different jurisdictions. One of the initial cases in India which elucidated the Average Consumer test was James Chadwick & Bros. Ltd. vs The National Sewing Thread Co.². In this case, a Division Bench of the Bombay High Court had observed that ". It is impossible to accept that a man looking at a trademark would take in every single feature of the trademark. The question would be, what would he normally retain in his mind after looking at the trade mark? What would be the salient feature of the trade mark which in future would lead him to associate the particular goods with that trademark?"

As most of the jurisprudence for this test has evolved from UK and US cases, in Cadila Health Care Ltd. versus Cadila Pharmaceuticals Ltd.³ the Supreme Court of India while deciding upon the issue of similarity between the marks "Falcigo" and "Falcitab" further expounded the Average Consumer Test  from the perspective of an average Indian consumer. The Court noted that in a country like India where there is no common language, an important test to be applied is whether the similarity between the two marks is such that it is likely to cause confusion in the mind of an ordinary consumer. In this case, the Supreme Court has also laid down factors to be considered from the perspective of an Average Indian Consumer including the nature of the rival marks, their degree of resemblance, nature of goods offered thereunder, mode of purchase and the class of purchasers, for deciding question of deceptive similarity.

Recently, in passing off disputes such as ITC Ltd vs. CG Foods (India) Private Limited⁴ and Britannia Industries vs. ITC Ltd.⁵ which comprised of major FMCG players in the market, the Courts have rejected the plea for injunction after applying the Average Consumer Test.  In ITC Ltd vs. CG Foods (India) Private Limited , the Karnataka High Court noted that 'perceptive' abilities of the Average Consumer is calibrated and measured having regard to nature of the goods sold, the market share of the plaintiff's goods, the circumstances of sale, the class of persons to whom the product is sold etc. The standard of his 'perceptive abilities' is not constant; it is a function of a balancing of multiple factors.  If, the Court, with the eyes of the hypothetical purchaser, finds that there is even a likelihood of deception, the test of deceptive similarity is satisfied. In Britannia Industries vs. ITC Ltd, the Delhi High Court explained the differences between the terms "deceptive" and "cause confusion" under Sections 29(1) and (2) of the Trade Marks Act, 1999 ("Act") respectively and laid down that Courts must assess the features of the rival marks, which are most prominent, and if there is dissimilarity in the prominent or essential features of the rival marks, so as to impress the mind of the person of Average Consumer, no finding of confusing or deceptive similarity can be arrived at.

INDUSLAW VIEW:

The Average Consumer test does not call for an accurate comparison of the words, syllable by syllable, it looks for the possibility of confusion due imperfect pronunciation and speech, both on the part of the buyer as well as the seller.

While adopting any mark or before initiating legal proceedings, it is important for a brand owner to think from the perspective of an Average Consumer and compare the mark with already existing marks in market. The look/ appearance, and the sound of the trademarks, as well as the nature of the goods, are all relevant considerations to be taken into account while adopting any mark. This will not only help in avoiding any unnecessary objection to the mark, but will also help in evaluating the chances of success in case any legal proceedings are initiated for challenging the same.

Footnotes

1. Hamdard National Foundation (India) & Anr vs. Sadar Laboratories Pvt. Ltd. CS(COMM) 551/2020

2. AIR 1951 Bom 147

3. 2001 (2) PTC 541 SC

4.  2021(88)PTC178(Karn). ITC Ltd. alleged that the wrapper adopted by CG Foods (India) Pvt. Ltd. for 'WAI WAI Xpress Noodles Majedar Masala" is deceptively similar or nearly identical to its (ITC) wrapper for 'Sunfeast Yippee Magic Masala'. The Defendant in this case i.e. CG Foods (India) Pvt. Ltd. was successfully represented by IndusLaw.

5.  281(2021)DLT296. Britannia claimed that ITC is passing off its "SUNFEAST FARMLITE 5-SEED DIGETIVE" biscuits as those of the Britannia's "Nutri Choice Digestive" biscuits by adopting a similar packaging.

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.