Trademark Law: Grounds to Establish Likelihood of Consumer Confusion

Indian law stipulates that a trademark is an exclusive and unique sign or symbol owned by a person, corporation or legal entity, which enables a consumer to identify and associate with their products or services. A trademark can be a visual symbol, word, logo, phrase, name or image. Think about some popular trademarks that pop up in your mind even as you are reading this– McDonalds, Pepsi, Adidas, Reebok, just to mention a few.

The basic purpose of a trademark is to create an image in a consumer’s mind with the purpose of instant recall. The owner of a trademark is protected by law from competitors trying to imitate, modify or steal the brand identity by using a symbol or image, which is similar to the trademark he/she owns.

Trademark Law: How ‘Radiff’ Took Cue from ‘Rediff’

In Cyber law, the possibility of creating consumer confusion is a common one. Here are some real cases pertaining to this.

One of India’s landmark cases is Rediff Communication Limited v. Cyberbooth, Citation A.I.R. 2000 Bom. 27,  the accused used the term ‘RADIFF’ as part of their business but this trademark is too similar to the trademark of the complainant ‘REDIFF.’  transaction on web. The Bombay High Court discarded the argument that the Internet is used only by sophisticated people and that literate people know to determine how to visit the site of their choice.  The court held that if a person is a sophisticated internet user, it is not necessary that he/she is also a sophisticated consumer of information. Such a person may logon to the wrong website, believing it is one and the same one as before.

Trademark Law: Landmark US Court Decisions

In another famous case, this time from the US, Polariod Corp. v. Polariod Elecs Corp., 287 F 2d 492, the court put forward the following conditions to determine the likelihood of confusion in the mind of a consumer, such as:

• The strength of the trademark.
• The level of similarity between the two marks.
• The similarity of the products.
• Degree of actual confusion.
• Quality of the product of the accused.

Another milestone case from the US is that of Brookfield Communication, Inc. v. West Coast Entertainment Corp, 174 F. 3d at 1061-65. In this case, the plaintiff filed a case against the defendant for registration of his domain name ‘moviebuff.com’ which resembled the trademark of the complainant ‘Movie Buff.’ The court held that the domain name of the accused is identical to the trademark of the complainant. It also ruled that the existence of evidence of actual confusion or intention to confuse is not mandatory to establish the probability of confusion.