LIKELIHOOD OF CONFUSION IN TRADEMARK LAW OF INDIA AND US: A COMPARATIVE STUDY

C. V. Madhusudhanan; Dr. V. Balachandran

C. V. Madhusudhanan Research Scholar, Department of Corporate Secretaryship, School of Management, Alagappa University, Tamil Nadu, India.
Dr. V. Balachandran Special Officer (Planning & Development) and Professor, Alagappa University, Tamil Nadu, India.

Keywords: Identical, Similar, Confusion, Deception, Protection, Intellectual Property, Distinctiveness, Infringement

Abstract

A trademark is a vehicle of goodwill and brand loyalty and occupies the mind space of the consumer’s worldwide, thereby making it more valuable than its present earning capability. It is a carrier for quality and acts as a great advertising vehicle. A trademark permeates into the mind-set of the consumer in such a manner that the cost of the goods or services represented by a trademark sometimes has no relevance to the physical composition or value of such goods or services. The basic characteristic ability of a trademark is to be distinctive in the market place so that it helps it to be identifiable without any confusion and hence provide better visibility of goods and services. Even the capability of graphical representation for a trademark, which at present is a sine qua non in trademark registration, is losing relevance due to new genre of trademark like sound marks, smell marks, feel marks etc. The primary function of trademark is twofold: The first is to distinguish goods or services of one source from that of another and second is to indicate the source of origin of goods or services. The distinguishing feature separates trademark from a mark and makes it a recognizable intellectual property. However, when the distinctive or distinguishing feature of a trademark is challenged due to infringement by an identical or similar trademark, there arises the concept of confusion and deception. When a junior trademark in the market place challenges the distinctiveness of a senior trademark, there arises confusion or a likelihood of confusion in the minds of the consumer as regards the goods or services represented by each of those trademarks. When the confusion leads to make a consumer believe that such a junior trademark is from the same stable as the senior trademark, there arises deception as to the source. This article examines the legal position under the respective trademark law in India and in the US, that provides protection to a registered proprietor of a trademark subject to such challenge in the market place.

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