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2014 (10) TMI 1060 - HC - Indian LawsInfringement in the use of trademark or not - Seeking interim injunction against the appellant restraining the appellant from using the mark ‘D’DAAZS’ or any other mark deceptively similar to that of the respondent-plaintiff’s trade mark ‘HAAGEN-DAZS’ in relation to ice cream - HELD THAT:- Since time immemorial the Supreme Court has consistently sounded a note of caution that the competing marks have to be compared keeping in mind an unwary purchaser of average intelligence and imperfect recollection - Consumers of any product do not deliberately memorize marks. They only retain a general, indefinite, vague, or even hazy impression of a mark and so may be confused upon encountering a similar mark. Consumers may equate a new mark or experience with one that they have long experienced without making an effort to ascertain whether or not they are the same marks. The consideration therefore is whether one mark may trigger a confused recollection of another mark. Thus, if the marks give the same general impression confusion is likely to occur. The ‘ordinary observer’ test is applied to determine if two works are substantially similar. The Court will look to the response of an ‘average lay observer‟ to ascertain whether a copyright holder's original expression is identifiable in the allegedly infringing work - Since it is employed to determine qualitative and quantitative similarity in visual copyright work, the said test can also be usefully applied in the domain of trademark law as well. The Courts have reiterated that the test for substantial similarity involves viewing the product in question through the eyes of the layman. A layman is not expected to have the same ‘hair-splitting’ skills as an expert. A punctilious analysis is not necessary. A layman is presumed to have the cognition and experiences of a reasonable man. Therefore, if a reasonable observer is likely to get confused between the two products then a copyright violation is said to take place - Transposing the said principles in the context of trademark infringement, one may venture to assess similarity and likelihood of confusion between rival marks on the touchstone of the impression gathered by a reasonable observer, who is a layman as opposed to a connoisseur. No interference is called for with the impugned order passed by the learned Single Judge. Consequently, the present appeal is dismissed.
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