The Section 11(1) of the Trade Marks Act 1999 says that a trade mark will not be registered if it has identical traits/similarities with any other already registered trade mark(s). This is because, the similarity/being identical of trademarks may create confusion for the public, for the services of one company may have association with those of the company with already existing trade mark.
The criteria adopted for classification of a mark as an identical trademark is very simple. A mark is considered identical to a trade mark when as a whole it contains extremely insignificant differences, so much so that they may go unnoticed by an average consumer.
On the other hand two trademarks are considered to share similarities when they are so nearly resembling that one mark can easily be deceived as other or may cause confusion.
The Trademark Office usually considers three factors while examining the trade mark applications. These factors are:
• All that is similar and different between the respective trademarks is considered.
• It is also brought into consideration that how distinctive the already existing mark is.
• To what degree the respective goods or services are similar, is also noted.
The criterion for evaluating trademarks has been created over the years and is very uncomplicated. Some of the major factors that are considered for the comparison of trademarks are:
• The Comparison is to be made keeping in mind the point of view of an ordinary person with average intelligence and of an imperfect recollection.
• One has to make sure to take into account the structural, visual & phonetic similarities, along with the similarity of the idea in both the marks. It must also be noted whether there is any likelihood for the two marks to cause confusion.
• One has to be careful that the whole mark is taken into consideration while evaluating. Only a selected part of the trademark compared with part of another trademark is not acceptable.
• However this does not mean that a letter by letter comparison is required. Also side by side comparison is not the correct test.
• Also in the case of medicinal preparations, additional precautions are required as possibility of confusion over marks on medicinal products may cause far more harm than that in case of ordinary products.
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