The Hon’ble Supreme Court in the decision reported as 1969 (2) SCC 131 K.R. Chinna Krishna Chettiar Vs. Shri Ambal and Co., Madras & Anr. held that the resemblance between the two marks must be considered with reference to the ear as well as the eye. It was held:
“ There is no evidence of actual confusion, but that might be due to the fact that the appellant’s trade is not of long standing. There is no visual resemblance between the two marks, but ocular comparison is not always the decisive test. The resemblance between the two marks must be considered with reference to the ear as well as the eye. There is a close affinity of sound between Ambal and Andal.”

In 2007 (35) PTC 714 (Bom.) Encore Electronics Ltd. Vs. Anchor Electronics and Electricals Pvt. Ltd. which decision was followed by the High Court of Delhi in (2011) 47 PTC 337 (Delhi) Consitex S.A. Vs. Kamini Jain & Ors. it was held: “The phonetic similarity between ‘Anchor’ on the one hand and ‘Encore’, on the other, is striking.

The two marks are phonetically, visually and structurally similar. The overall impression conveyed by a mark as a whole, has to be assessed in evaluating whether the mark of the Defendant is deceptively similar to the mark of the Plaintiff. Phonetic similarity constitutes an important index of whether a mark bears a deceptive or misleading similarity to another. The phonetic structure indicates how the rival marks ring in the ears. Courts in a country such as ours whose culture is enriched by a diversity of languages and scripts have to consider how the rival marks are spelt and pronounced in languages in which they are commonly used.


For More information contact

Tapan Choudhury,
Advocate,
Mob- 9873628941
Email ID   tapsash@gmail.com

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