If Customer Is Confused Even If Momentarily, It Is Sufficient To Establish Trademark Infringement: Delhi High Court

The Delhi High Court held that if the customer is confused, even if it be momentarily, it would be sufficient to establish infringement of trademark.

The Court held thus in an Intra-Court Appeal filed by Under Armour Inc under Section 13 of the Commercial Courts Act, 2015 (CC Act) read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), against the Order of the Single Judge.

A Division Bench of Justice Vibhu Bakhru and Justice Sachin Datta observed, “It is apparent from the above paragraph that the learned Single Judge accepted that the customer who comes across the impugned marks may be faced with “transient wonderment”, but being an informed customer would proceed to find out the differences between the products. In our view, if the customer looking at the impugned marks associates the same with the appellant’s marks even though for a brief period, the appellant’s trademarks would be infringed on the plain reading of Section 29(1)/ Section 29(2) and even Section 29(4) of the TM Act. The duration of the confusion in the minds of the customer is not material. The fact that the customer is confused, even if it be momentarily, would be sufficient to establish infringement of trademark.”

The Bench said that if a customer of average intelligence and imperfect recollection, who seeks the Appellant’s product UNDER ARMOUR is for a brief moment deceived to think the Respondent’s product as associated with the Appellant’s mark, the action for infringement has to be sustained as the test of likelihood of confusion would stand satisfied.

Senior Advocate Swathi Sukumar represented the Appellant while Senior Advocate J. Sai Deepak represented the Respondents.

Factual Background

The Appellant filed a Suit for infringement of trademark, copyright, and passing off and sought an Interim Order restraining the Respondents from using certain trademarks and other marks that are deceptively similar to the Appellant’s trademarks. In view of this, the Single Judge placed certain restrictions regarding the use of the impugned marks by the Respondents but rejected the prayer for ad interim order restraining the Respondents from using the impugned marks, which the Appellant alleged to be deceptively similar to its registered trademarks and more particularly its registered word mark ‘UNDER ARMOUR’. Hence, an Intra-Court Appeal was preferred by the Appellant.

Reasoning

The High Court after hearing the contentions of the counsel, noted, “… the question to be considered by the court was essentially whether a customer looking at the impugned trademarks would be led to believe that the same is associated with the appellant’s trademark, even it be for a brief moment. The fact that he may on a closer examination of products and enquiries find that the impugned trademarks are not associated with the appellant’s trademarks would not take away from the fact that the impugned marks bear a similarity with the appellants trade mark, which led to the confusion.”

The Court remarked that in some cases, it may be sufficient for a new entrant to merely attract the customers of a well-known brand to look at its product and in some cases, it would be enough for a new entrant to get its foot in the door.

“It is not necessary that the customer must necessarily be deceived in buying the product under a junior mark for the registered senior mark to be infringed. If such the initial interest is elicited by any similarity with the well-known trademark, the requirement of Section 29 of the Act would be satisfied”, it added.

The Court was of the view that the manner in which “AERO ARMOUR” has been used across the length of sleeves is deceptively similar to the use of Appellant’s word mark “UNDER ARMOUR”.

“Given the degree of similarity between the competing marks, the nature of the goods and the use of similar trade channels; we are of the prima facie view that there exists a real likelihood of confusion. Even if we were to accept – which we do not – that there is no likelihood of confusion at the stage of purchase, there remains a real possibility of confusion at the initial stage”, it further said.

The Court observed that the phonetic similarity of the competing marks coupled with the manner in which it was used do prima facie indicate that there is a real likelihood of a customer with average intelligence and imperfect recollection confusing the Respondents’ mark to be associated with that of the Appellant.

“The fact that the respondent also used the short form “ARMR”, which was used by the appellant also supports the aforesaid view. … it can hardly dispute that the respondents being in the business of apparel and clothing would have known about the appellant’s Trademark “UNDER ARMOUR” and its worldwide reputation. Notwithstanding the same, the respondents had decided to adopt a mark, which prima facie bears phonetic and visual similarity with the appellant’s trademark. The respondent had, as noted above, also used the impugned trademark in the same manner as used by the appellant. This in our prima facie view, indicates that the use is less than dishonest”, it also noted.

The Court reiterated that an entrant must maintain a longer distance from a strong and a well-known mark, than which is necessary in case of a weak make and that the degree of protection accorded to a trademark is directly proportional to strongest of the make.

“In the present case, the respondents’ choice of the impugned mark does, prima facie, indicate that it had, in fact, attempted to get closer to the appellant’s registered trademark than what may be permissible”, it concluded.

Accordingly, the High Court allowed the Appeal, set aside the impugned Order, and restrained the Respondents from using the impugned marks or any other mark deceptively similar to the Appellant’s word mark ‘UNDER ARMOUR’ till the disposal of the Suit.

Cause Title- Under Armour Inc v. Anish Agarwal & Anr. (Neutral Citation: 2025:DHC:4243-DB)

Appearance:

Appellant: Senior Advocate Swathi Sukumar, Advocates S. Bansal, Rishi Bansal, Mankaran Singh, Kartik Malhotra, Rishabh Aggarwal, and Ritik Raghuvanshi.

Respondents: Senior Advocate J. Sai Deepak, Advocates Samik Mukherjee, Manosij Mukherjee, and Abhishek Avabhani.

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