Ttrial courts should have in mind the “quintessential common man” and not “the proverbial Sherlock Holmes” while deciding disputes over trademarks when allegations are made that one mark is deceptively similar to that of the other, the High Court of Karnataka has said.
“...the [trial] courts should have in mind, not the proverbial Sherlock Holmes, but the ‘common man’ who goes to the neighbourhood shop with the idea of purchasing a product of his liking – or, rather the liking of his granddaughter – which he had purchased only a week ago, and because of the gift of his humdrum existence has only an imperfect recollection of the imprint of the package,” the court said. Justice P. Krishna Bhat passed the order while directing the trial court to reconsider the contentions in the suit over trademark between Sheta Khandelwal, proprietor of Matru Ayurveda Herbals, Bengaluru, and N. Dinesh Kumar, proprietor of Matruveda Herbals, Hyderabad.
“The ‘common man’ is neither blessed with the wisdom of Solomon nor the trained eyes of Sherlock Holmes. There should be present in the mind of the trial court this important aspect that where there is/are a common element/elements in the marks of plaintiff and defendant which is also contained in a number of other marks in use in the same market,” the High Court said.
It also observed that the trial courts will have to examine whether such a common occurrence in the market tends to cause purchasers to pay attention to the other features of the respective marks and to distinguish between them by those features.
When the ‘trade name’ is set inside the trademark, the trial courts will have to examine whether there is likelihood of confusion arising between the two trademarks, in the mind of a ‘ common man’ who looks at them for a fleeting second, the court said.
However, application of these principles depends on defendant successfully demonstrating that the marks containing the common element/elements are in fairly extensive use in the market in which the marks of the plaintiff and defendant are also being used.
