Understanding “global appreciation test”, “anti-dissection rule”, “initial interest confusion test” through clash of the “ARMOUR”

Background

This Article discusses the recent analysis of “global appreciation test”, “anti-dissection rule”, “initial interest confusion test” by Delhi High Court’s Division Bench in the case of UNDER ARMOUR INC v. Anish Agarwal, FAO(OS) (COMM) 174 of 2024. The Appellant UNDER ARMOUR (a global sportswear manufacturer) alleged that Respondent’s brand name “AERO ARMOUR/AERO ARMR” was deceptively similar to its brand name “UNDER ARMOUR” and thus infringed its trademark. The Judgment under discussion was passed in an intra-court appeal by the Appellant against an order of a Ld. Single Judge denying the relief of interim injunction against AERO ARMOUR. The Division Bench deliberated on the above-noted concepts while considering the factors which are relevant to prima facie identify similarity between conflicting marks to determine trademark infringement in terms of Section 29 of the Trade Marks Act, 1999 (TM Act).

What weighed with Ld. Single Judge while denying interim injunction to the Appellant was the difference between Appellant’s and Respondent’s products in terms of: (i) price point; (ii) design; (iii) target consumer base within the same category (apparel) i.e., sportswear in case of UNDER ARMOUR and military themed casual wear in case of AERO ARMOUR.  Ld. Single Judge also considered factors such as lack of proprietary right of Appellant in the word “ARMOUR”, Appellant’s stand before the Trademark Registry that its trademark ‘UNDER ARMOUR’ must be viewed as a whole and the anti-dissection rule which did not permit comparison of independent elements of conflicting composite marks. In essence, Ld. Single judge held that though at the initial stage, the consumer may face “transient wonderment”, it will not be the case at the stage of final purchasing as today’s consumer is a well-informed one.

“Anti-Dissection Rule”; “Global Appreciation Test”; Initial Interest Confusion Test”

The Hon’ble Division Bench acknowledged the rigor of “anti-dissection rule” but held that the ‘dominant parts’ of competing composite marks could still be considered to determine overall similarity between them. For this, the bench drew strength from McCarthy on Trademarks and Unfair Competition, M/s South India Beverages India Private Limited v. General Mills Marketing Inc. & Anr. (2014 SCC OnLine Del 1953) and Vasundhra Jewellers Pvt. Ltd. v. Kirat Vinodbhai Jadvani & Anr., 2022:DHC:4255-DB which recorded that though a buyer of average intelligence and imperfect recollection remembers commercial impression created by a composite mark as a whole and not by its independent elements, the component parts could still be looked into to determine the customer reaction to overall impression created by conflicting composite marks. The court noted that a “strong registered mark with a distinctive portion, may be infringed if a part of the later mark, which dominates the commercial impression of the said mark is identical to the distinctive portion of the earlier mark”. In this case, the Division Bench found “ARMOUR” to be dominating the overall commercial expression of AERO ARMOUR and held that the fact that Appellant had no proprietary rights in the word ‘ARMOUR’ in India is irrelevant.

As regards “global appreciation test” the Division Bench found that Ld. Single Judge did not not appreciated this test in its true spirit. The various components of this test such as: (i) degree of visual, aural and/or conceptual similarity between the marks; (ii) overall impression created by the marks on relevant public; (iii) purpose; (iv) intent; and (v) strength/reputation/goodwill (of infringed mark) were not touched upon and the Ld. Single judge was satisfied with mere difference in design and theme of the conflicting products. In this regard, the Division Bench clarified that a trademark primarily helps one identify its source and thus, the taglines and prints used by the Respondents were not the source identifiers of its products; but the competing mark was. Hence, a customer could mistake impugned mark as a Appellant’s mark but in a new design segment. The Division Bench added that the main category to which both the competing marks related was same i.e., apparel and therefore, the sub-categorisation within the said main category was uncalled for.

On “Initial Interest Confusion Test”, the Division Bench noted that the confusion at initial stage per se, howsoever small or momentary, is sufficient to satisfy the requirement of deceptive similarity under Section 29 of TM Act and the duration of such confusion is immaterial. The bench relied on Grotrian, Helfferich Schulz v. Steinway & Sons 365 F. Supp. 707 (1973) wherein the US District Court held that the “sophistication of buyers, however, does not always assure the absence of confusion”. The bench also relied on Google LLC v. DRS Logistics (P) Limited 2023 SCC OnLine Del 4809 which noted that Section 29 of TM Act does not talk of any duration of confusion and what is material is not the confusion but the misappropriation of goodwill of impugned mark by the alleged infringer.

Being guided by the above stated principles, the Division Bench found prima facie  similarity between Appellant’s and Respondent’s products and set aside the Ld. Single Judge’s order and granted interim injunction against Respondent and in favour of the Appellant.

Conclusion

The Judgment marks a pivotal reaffirmation of key trademark law principles and emphasizes on the basic requirements to fulfil the mandate of section 29 of TM Act i.e., the existence of prima facie similarity between infringed and infringing mark. The Division Bench reminded that howsoever sophisticated a consumer may be, the possibility of confusion cannot be negated in totality. An infringer’s objective is achieved if the potential buyer, even momentarily, mistakes its products as being connected to or belonging to proprietor of infringed mark because it’s the goodwill / reputation of the infringed mark that the infringer gets benefitted by as a result of the customer’s confusion. Further, it is the overall consumer perception shaped by visual, aural, and conceptual similarities that outweighs mere design or pricing distinctions. The Judgment also reminded the readers about the true intent behind the anti-dissection rule. This decision, in essence, strengthens the trademark protection by prioritizing the integrity of well-known marks over superficial product differentiation with amateur entrants.