Intellectual Property Rights MCQs for Judiciary, Page 7

Correct answer: C. The court identify the dominant or distinctive element of the plaintiff's mark (the element most likely to be remembered by consumers) and assess whether the defendant's mark adopts that dominant element in a manner likely to cause confusion, rather than making a minute comparison of all components of both marks

The dominant mark test is a judicial tool for applying the anti-dissection principle in composite marks. When a mark contains multiple elements (for example, a word, a device, and a colour combination), courts do not assess each element in isolation; rather, they identify which element is dominant or distinctive in the overall impression the mark creates. The dominant element is typically the part most likely to be retained in the consumer's imperfect memory. If the defendant's mark copies or closely imitates the dominant element of the plaintiff's mark, the overall impression created may be confusingly similar even if the other elements differ. This approach is applied by the Delhi and Bombay High Courts in numerous cases, including those involving house marks (like 'Kwik' in the Pidilite case where the court found it was not dominant) and invented words embedded in composite marks. Consumer surveys, while useful, are not mandatory and courts may rely on judicial assessment of likely consumer perception.

Source note: Trade Marks Act 1999, Section 11; Judicial interpretation of deceptive similarity

Correct answer: A. 10 years from the date of registration, renewable indefinitely for further periods of 10 years upon payment of the prescribed renewal fee

Section 25(1) of the Trade Marks Act, 1999 provides that the registration of a trade mark is valid for a period of ten years from the date of registration, which is the date of the filing of the application. Unlike patents, which have a fixed term of twenty years with no extension, trade marks can be maintained indefinitely, making them the most durable form of intellectual property protection. Under Section 25(2), a registered mark may be renewed for further periods of ten years each upon application and payment of the prescribed renewal fee. If the renewal fee is not paid by the due date, the Registrar may remove the mark from the register, but Section 25(3) provides a grace period and restoration mechanism. Trade marks thus have the unique characteristic of potentially infinite protection, provided the mark remains in bona fide use and renewal fees are paid; this reflects the ongoing commercial function of trade marks as source identifiers, distinguishing them from the limited-term monopoly philosophy underlying patents and copyrights.

Source note: Section 25, Trade Marks Act 1999

Correct answer: A. Use of a registered mark by a person to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or time of production of goods, provided such use is in accordance with honest practices in industrial or commercial matters

Section 30 of the Trade Marks Act, 1999 provides the statutory exceptions to trade mark infringement. Section 30(1) states that nothing in Section 29 shall be construed as preventing a person from using a registered trade mark to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or time of production of goods or rendering of services, provided such use is made in accordance with honest practices in industrial or commercial matters and does not take unfair advantage of or is not detrimental to the distinctive character or repute of the mark. Section 30(2) further includes: use of one's own name or address; use of signs or indications not of a distinctive character; use necessary to indicate the intended purpose of a product or service (particularly for accessories and spare parts). In Hawkins Cookers Ltd. v. Murugan Enterprises (2012) 50 PTC 389 (Del), the court held that use of a trade mark to indicate compatibility with genuine goods (e.g., 'fits Hawkins cookers') could fall within Section 30.

Source note: Section 30, Trade Marks Act 1999; Hawkins Cookers Ltd. v. Murugan Enterprises, 2012 (50) PTC 389 (Del)

Correct answer: A. Is generally permissible under the principle of international exhaustion: once genuine goods are placed on any market worldwide by or with the consent of the mark owner, the mark owner's rights in those specific goods are exhausted and subsequent importation and resale in India is not infringement; however, the position is contested at the appellate level and may be subject to further judicial clarification

The question of whether India follows international or national exhaustion of trade mark rights in the context of parallel imports remains one of the more contested areas of Indian IP law. In Kapil Wadhwa v. Samsung Electronics (2012) DLT 23 (Del), the Delhi High Court Single Judge interpreted the Trade Marks Act, 1999 as embodying international exhaustion: once genuine goods bearing the mark are placed on any market worldwide by or with the trade mark owner's consent, the mark owner cannot use trade mark rights to prevent importation and resale in India. The court relied on Sections 29(6), 30(3), and 30(4). However, the appellate position has not definitively settled the matter, and some later decisions have expressed reservations about the scope of international exhaustion in the Indian context. The practical consequence is significant for the grey market goods industry: if international exhaustion applies, authorised Indian distributors cannot block parallel imports of genuine goods that were lawfully placed on any foreign market.

Source note: Kapil Wadhwa v. Samsung Electronics Co. Ltd. (2012); Sections 29(6), 30(3), (4), Trade Marks Act 1999

Correct answer: B. Once the trade mark owner or a person authorised by them has placed genuine goods bearing the mark on the market, the trade mark owner cannot use trademark rights to prevent the subsequent resale of those specific goods

The doctrine of exhaustion of trade mark rights provides that once goods bearing a registered trade mark have been put on the market by the trade mark owner or with their consent, the trade mark owner's rights in relation to those specific goods are exhausted and cannot be used to prevent the further distribution or resale of those goods. Section 29(6) of the Trade Marks Act, 1999 codifies this principle, providing that the right to use a registered mark is not infringed by the resale of genuine goods first sold under the mark. The doctrine underpins the legality of parallel imports and grey market goods (genuine goods sold without the mark owner's consent in a particular territory). Article 6 of the TRIPS Agreement allows member states to choose between national, regional, and international exhaustion regimes. India follows the principle of international exhaustion under Section 30(3), meaning that legitimate resale of genuine goods originally sold with the mark owner's consent anywhere in the world does not constitute infringement.

Source note: Article 6, TRIPS Agreement; Section 29(6), 30(3), Trade Marks Act 1999

Correct answer: B. A gi that was registered or established through use before the trade mark application date generally prevails over a later trade mark if there is a conflict; however, a trade mark registered in good faith before the gi was established or protected may co-exist if the Registrar considers it appropriate

Section 25 of the Trade Marks Act, 1999 provides that no trade mark shall be registered after the commencement of the Trade Marks Act if it consists of or contains a geographical indication with respect to goods notified under the Geographical Indications of Goods (Registration and Protection) Act, 1999. However, Section 26 provides a saving for trade marks that were previously registered or applied for in good faith before the GI was protected. The principle is therefore one of temporal priority: a GI that is established before a trade mark application will generally block that application. This reflects the policy of protecting geographical indications as collective rights belonging to communities of producers in a particular region, and preventing their monopolisation by single traders through trade mark registration. The conflict between GI rights (collective, community-based) and trade marks (individual, exclusive) is a complex area at the intersection of the Trade Marks Act, 1999 and the GI Act, 1999.

Source note: Sections 25, 26, Trade Marks Act 1999

Correct answer: A. India follows a principle of international exhaustion under Section 29(6) and Section 30(3) read with Section 30(4) of the Trade Marks Act, 1999, meaning that genuine goods placed on any market worldwide with the mark owner's consent can lawfully be imported and sold in India without constituting trade mark infringement

In Kapil Wadhwa v. Samsung Electronics Co. Ltd. (2012) DLT 23 (Del), the Delhi High Court Single Judge interpreted the exhaustion provisions of the Trade Marks Act, 1999 as embodying international (as opposed to national) exhaustion. Under international exhaustion, once genuine branded goods are placed on any market in the world by or with the consent of the trade mark owner, the trade mark rights are exhausted globally and the goods can be imported into India without constituting trade mark infringement. The court relied on Sections 29(6), 30(3), and 30(4) of the Trade Marks Act, 1999. The significance of this ruling for grey market (parallel import) goods is substantial: it means that authorised Indian distributors cannot use trade mark law to block parallel imports of genuine goods that have been legitimately purchased abroad. However, the issue of whether Indian law recognises international or national exhaustion has been contested, and the position remains somewhat unsettled at the appellate level.

Source note: Kapil Wadhwa v. Samsung Electronics Co. Ltd., (2012) DLT 23 (Del); Section 29(6), 30(3), Trade Marks Act 1999

Correct answer: B. The Registrar is satisfied that there has been honest concurrent use of the two marks, or that there are other special circumstances making it proper to permit registration, with or without conditions and limitations

Section 12 of the Trade Marks Act, 1999 recognises that in exceptional cases, two traders may independently adopt identical or similar marks without any wrongful intent, leading to a situation of simultaneous use in the marketplace over a significant period. The provision allows the Registrar to exercise discretion to permit registration of the later mark provided they are satisfied of honest concurrent use or that special circumstances justify concurrent registration. The Registrar must also be satisfied that granting the registration would not cause confusion prejudicial to public interest. Conditions and limitations may be imposed on either or both registrations, such as restrictions on geographical area of use or class of goods. The classic requirements for honest concurrent use are that: the use must have been honest (without knowledge of the earlier mark or without intent to take advantage of it); the use must have been concurrent (continuous alongside the other mark); and the use must have been of sufficient duration and extent to justify concurrent registration.

Source note: Section 12, Trade Marks Act 1999

Correct answer: D. Define the boundary of permissible use of a registered mark by third parties: uses that comply with honest commercial practices are permitted, while uses that amount to unfair exploitation or denigration of the mark are not protected by Section 30

Section 30(1) of the Trade Marks Act, 1999 creates a general limitation on the scope of exclusive trade mark rights by carving out a space for legitimate third-party use that complies with honest industrial and commercial practices. The honest practices standard serves as a qualitative filter on the exceptions to infringement: only uses that are commercially honest, do not take unfair advantage of the mark's reputation, and do not mislead the public fall within the protected zone of permissible use under Section 30. A use that, while nominally descriptive or comparative, is really designed to trade on the mark owner's goodwill or to confuse the public would not qualify as 'honest.' This standard imports an objective, industry-contextual assessment of the conduct of the third party user. The concept originates in European trade mark law and has been progressively incorporated into Indian trade mark jurisprudence, reflecting the TRIPS Agreement's requirements for balanced intellectual property protection that accommodates legitimate competition.

Source note: Section 30(1), Trade Marks Act 1999

Correct answer: C. To create a structured framework for adjudicating IP disputes with judges having specialised expertise, prescribing systematic procedures for damages calculation, disclosure requirements, and technical evidence, thereby improving the quality and consistency of IP adjudication and enabling more sophisticated remedies including meaningful damages awards

The Delhi High Court Intellectual Property Rights Division (IPD) was established pursuant to the Delhi High Court Intellectual Property Rights Division Rules, 2022, which created a structured framework for handling IP disputes within a dedicated division staffed by judges with specialised IP expertise. The IPD Rules introduced systematic procedures for patent infringement cases including: formal case management conferences, expert evidence protocols, technical primer hearings, and importantly, a structured framework for the assessment of damages. This institutional reform was significant because Indian IP courts had historically been criticised for awarding low or symbolic damages that did not adequately compensate rights holders or deter infringers. The IPD Rules' damages framework enabled the application of modern damages economics to IP disputes, contributing to landmark awards such as the 244-crore damages in Ericsson v. Lava International (2024). The Madras High Court established a comparable IP Division in 2023, and this model is expanding nationally.

Source note: Delhi IPD Rules, 2022; Ericsson v. Lava International (Delhi High Court, 2024)

Correct answer: A. Decriminalisation of certain offences under the Trade Marks Act that had previously been punishable with imprisonment; these were converted to compoundable civil offences with enhanced monetary penalties, with the penalty for misrepresentation of registered trade mark status increased from one lakh to ten lakh rupees

The Jan Vishwas (Amendment of Provisions) Act, 2023 was enacted as part of the government's 'ease of doing business' initiative and amended over 40 central legislation, including the Trade Marks Act, 1999 and the Patents Act, 1970. In relation to trade marks, the Act decriminalised certain offences that had previously been punishable with imprisonment, converting them to compoundable civil offences with monetary penalties. The penalty for falsely applying or misrepresenting a registered trade mark (claiming a mark is registered when it is not) was enhanced from one lakh to ten lakh rupees. The Act also introduced an adjudicating officer mechanism for certain offences, providing an administrative remedy before criminal prosecution. These changes reflect the policy that minor IP compliance failures are better addressed through monetary penalties and civil remedies rather than criminal prosecution, reserving criminal sanctions for serious offences such as large-scale counterfeiting. Similar decriminalisation amendments were made to the Patents Act and Designs Act.

Source note: Jan Vishwas (Amendment of Provisions) Act, 2023; Trade Marks Act 1999

Correct answer: D. Bring infringement proceedings in their own name if the mark proprietor fails to take action within two months of being called upon to do so

Sections 48 to 53 of the Trade Marks Act, 1999 govern the registration of permitted users (registered users) of a trade mark under a licensing arrangement. Under Section 53, where the registered proprietor of a mark fails to take proceedings for infringement after the registered user has called upon them to do so, the registered user may bring infringement proceedings in their own name, provided the registered proprietor is joined as a defendant. This protects the commercial investment of licensees and ensures that third-party infringement does not go unchallenged merely because the mark proprietor is unwilling to sue. Unlike the 1958 Act, the 1999 Act does not require Central Government permission for licensing. A critical requirement under the 1999 Act is genuine quality control: in Gujarat Bottling Co. v. Coca Cola (AIR 1995 SC 2372), the Supreme Court confirmed that the licensor must retain actual control over the quality of goods bearing the mark, failing which the mark can be cancelled for being deceptive or contrary to public interest.

Source note: Sections 48-53, Trade Marks Act 1999; Gujarat Bottling Co. v. Coca Cola, AIR 1995 SC 2372

Correct answer: C. File a single international application through their national IP office and designate multiple member states in which they seek protection, creating an international registration that is examined by each designated national office according to its own law

The Madrid Protocol (Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks) is administered by the International Bureau of WIPO and provides a centralised filing mechanism for international trade mark registration. Under the Protocol, a person who has registered or applied for a trade mark in their home country (the 'basic mark') can file a single international application through their national IP office (the Office of Origin) in one language and pay a single set of fees. The International Bureau registers the mark and transmits it to the IP offices of the designated member states. Each designated office then examines the application according to its own national law and either accepts or refuses protection within a specified period (typically 12-18 months). Refusal by one designated state does not affect the application in other states. India acceded to the Madrid Protocol in 2013 (effective 8 July 2013), allowing Indian applicants to seek international protection and foreign applicants to designate India in their international applications.

Source note: Madrid Protocol; Section 154 and Chapter XIV, Trade Marks Act 1999

Correct answer: C. In the pharmaceutical sector, the first user of a mark globally should be considered the prior user in India, given the international nature of the pharmaceutical industry and the need to protect public health from confusion between drug names

In Milmet Oftho Industries v. Allergan Inc. (2004) 12 SCC 624, the Supreme Court extended the concept of trans-border reputation in a particularly significant manner in the pharmaceutical context. The court held that in the case of pharmaceutical products, considering the international nature of the industry and the movement of healthcare professionals across borders, the first person to use a pharmaceutical trade mark anywhere in the world should be treated as the prior user even in India. The court reasoned that doctors and medical professionals in India are aware of internationally available drugs through medical literature and professional contacts, making the risk of confusion between a globally recognised pharmaceutical mark and a locally adopted similar mark a serious public health concern. This case built on the trans-border reputation doctrine from N.R. Dongre v. Whirlpool and applied it with special force to medicines, where the stakes of confusion are particularly high.

Source note: Milmet Oftho Industries v. Allergen Inc., (2004) 12 SCC 624

Correct answer: C. Five years and three months following the date of completion of registration

Section 47(1) of the Trade Marks Act, 1999 provides that a registered trade mark may be taken off the register on the application of any aggrieved person on the ground that up to one month before the date of the application, a continuous period of five years and three months from the date on which the trade mark was actually entered in the register has elapsed during which the trade mark was not put to genuine use in relation to those goods or services in India by the registered proprietor or a permitted user. The specific period of five years and three months (rather than simply five years) accounts for the three-month period before the application date. The registered proprietor can rebut the application by demonstrating either bona fide use or valid reasons for non-use. Valid reasons for non-use typically include circumstances arising independently of the proprietor's will, such as import restrictions, regulatory bans, or force majeure events. Defensive registrations (marks registered only to block competitors without any intention to use) are therefore vulnerable to cancellation on non-use grounds.

Source note: Section 47, Trade Marks Act 1999

Correct answer: C. The graphical representation requirement under Section 2(1)(zb) and Rule 25 of the Trade Marks Rules, 2017: a scent cannot currently be represented graphically in a manner that is clear, precise, self-contained, durable, and objective (the Sieckmann criteria) such that others can understand precisely what is being protected, making it very difficult to meet the formal registration requirement

The registration of olfactory or scent marks is a contested area of trade mark law worldwide. In India, the fundamental obstacle is the graphical representation requirement: Section 2(1)(zb) defines a trade mark as a mark 'capable of being represented graphically.' Under the Trade Marks Rules, 2017, the representation must enable the public to determine precisely what is protected. The European Court of Justice in Ralf Sieckmann v. Deutsches Patent und Markenamt (Case C-273/00, 2002) established that a graphical representation of a scent must be clear, precise, self-contained, easily accessible, intelligible, durable, and objective. A chemical formula for the substance producing the scent is not sufficiently accessible; a verbal description is not sufficiently precise; and a scent sample is not durable. India has no special provision for non-traditional marks meeting the graphical representation requirement by alternative means (such as digital files or spectroscopic analysis), making olfactory mark registration practically very difficult. The Aditya Sharma paper in your Drive resources specifically addresses this lacuna.

Source note: Section 2(1)(zb), Trade Marks Act 1999; Sieckmann v. Deutsches Patent und Markenamt (ECJ, 2002)

Correct answer: B. Six months of the date of first filing, and have the second application treated as if it had been filed on the date of the first application

Article 4 of the Paris Convention, 1883 and Section 154 of the Trade Marks Act, 1999 establish the right of priority for trade mark applications. The right of priority allows an applicant who has filed a trade mark application in any Paris Convention member state to file corresponding applications in other member states within six months of the first filing date and claim the benefit of the original filing date as the priority date. This means that any third-party applications filed in the intervening six months in the later countries will be treated as if they were filed after the priority date. The priority date determines the relative rank of competing applications for the same or similar marks. For patents, the Paris Convention provides a twelve-month priority period; for trade marks and designs, it is six months. India acceded to the Paris Convention in 1998, bringing Indian trade mark law in line with international standards on priority rights under TRIPS Agreement Article 2, which incorporates Paris Convention obligations.

Source note: Article 4, Paris Convention 1883; Section 154, Trade Marks Act 1999

Correct answer: C. An infringement action is a statutory action available only to the owner of a registered mark; passing off is a common law action protecting goodwill, available to the owner of both registered and unregistered marks, and requires proof of goodwill, misrepresentation, and actual or likely damage

The key distinctions between infringement of a registered trade mark and passing off are as follows. Infringement is a statutory cause of action under Section 29 of the Trade Marks Act, 1999, available only to the proprietor of a registered trade mark; the claimant need only show that the defendant used an identical or similar mark in relation to identical or similar goods without authorisation. Passing off is a common law tort protecting the goodwill attached to a trader's mark, name, or get-up, regardless of whether the mark is registered. The classic trinity of elements for passing off (as formulated in Perry v. Truefitt and confirmed by the Supreme Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73) requires: first, the existence of goodwill or reputation associated with the claimant's mark; second, a misrepresentation by the defendant leading to confusion; and third, actual or reasonably foreseeable damage. A registered mark owner can pursue both actions simultaneously, obtaining greater protection.

Source note: Section 29, Trade Marks Act 1999; Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73

Correct answer: D. Position marks are registrable as trade marks in India provided they are capable of graphical representation, are distinctive (or have acquired distinctiveness through use), and do not fall within any of the absolute grounds for refusal; the specific position on the article where the mark appears forms an essential part of the representation

Position marks are a category of non-traditional trade marks that protect distinctive visual features located at a specific position on goods (such as Louboutin's red sole, Adidas's three stripes on the side of sportswear, or Hermès's distinctive placement of a lock). While the Trade Marks Act, 1999 does not use the term 'position mark' expressly, the broad definitions of 'mark' and 'trade mark' under Sections 2(1)(m) and 2(1)(zb) are wide enough to include position marks as marks consisting of combinations of shapes, configurations, and colour applied to a specific position on an article. The CGPDTM's examination guidelines and jurisprudence acknowledge position marks as registrable. The key requirements are that the position must be precisely defined in the graphical representation (typically by showing the mark's location on the goods using dotted lines to indicate the non-claimed portion of the article), and the positional element must function as a distinctive identifier of the applicant's goods rather than being a common feature of the product category.

Source note: Sections 2(1)(m), 2(1)(zb), Trade Marks Act 1999; CGPDTM Examination Guidelines

Correct answer: D. Has been using an identical or similar mark for goods since a date prior to the use or registration of the registered trade mark and has not abandoned such use

Section 34 of the Trade Marks Act, 1999 protects the prior user of a mark from interference by a person who subsequently obtains registration of an identical or similar mark. It provides that, notwithstanding anything in the Act, a person is not entitled to interfere with or restrain any person from using a mark identical with or nearly resembling his registered trade mark in relation to goods or services in relation to which that person or his predecessor in business has continuously used such mark from a date prior to: (a) the use of the first-mentioned registered trade mark by the registered proprietor or his predecessor in business; or (b) the date of the registration of the first-mentioned trade mark. The prior user's right is a defence against the later registrant's infringement action. This principle, known as 'prior user rights' or 'vested rights,' reflects the common law recognition that goodwill built through actual use predates and can override subsequent registration by a newcomer. Continuous and unabandoned prior use is the key requirement.

Source note: Section 34, Trade Marks Act 1999

Correct answer: A. The trade mark has become generic (a common name for the goods or services) through the registered proprietor's own actions or inactions, such that it no longer serves as a distinctive identifier

Section 57 of the Trade Marks Act, 1999 empowers the High Court (now the Intellectual Property Appellate Board or IPAB) or the Registrar to cancel or vary the registration of a trade mark on various grounds. Among the grounds for cancellation is that the mark has become a common name in India for goods or services of a kind in respect of which it is registered, through the registered proprietor's own acts or omissions. This is known as 'genericide': when a distinctive brand name becomes so widely used as the common name for a class of goods that it loses its ability to identify a single commercial source. Classic examples internationally include 'Aspirin,' 'Escalator,' and 'Thermos,' which were originally trade marks that became generic. The principle, sometimes called the 'Genericide Doctrine,' underscores the trade mark owner's obligation to actively police use of their mark and prevent it from being used as a generic product name. Other grounds for cancellation under Section 57 include non-use for a continuous period of five years under Section 47.

Source note: Sections 47, 57, Trade Marks Act 1999

Correct answer: B. The court must examine whether the use shown was bona fide commercial use in the ordinary course of trade; token use artificially engineered solely to defeat a cancellation application (known as 'colourable use') does not constitute bona fide use sufficient to maintain registration

Section 47 of the Trade Marks Act, 1999 requires 'bona fide' use of the mark in relation to the registered goods during the relevant five-year period. Indian courts and the erstwhile IPAB have consistently held that use must be genuine commercial use in the ordinary course of trade, not token or colourable use manufactured to prevent cancellation. In M/s Hardie Trading Ltd. v. Addisons Paint and Chemicals Ltd. (2003), the court examined what constitutes genuine use and held that small-scale or sporadic use that was not part of a genuine commercial endeavour does not satisfy the bona fide use standard. The enquiry is whether the trade mark is actually being used in commerce as a trade mark (to distinguish the proprietor's goods from those of others), not whether invoices for any quantity of goods can be produced. The courts look at the entire picture of commercial activity, not merely the existence of isolated transactions.

Source note: Section 47, Trade Marks Act 1999; M/s Hardie Trading Ltd. v. Addisons Paint and Chemicals Ltd.

Correct answer: A. Four months

Under Section 21(1) of the Trade Marks Act, 1999, any person may, within four months from the date of advertisement of an application for registration of a trade mark in the Trade Marks Journal, give notice in writing to the Registrar of their opposition to such registration. This four-month opposition window is an essential procedural safeguard that allows existing mark owners and other interested persons to contest registration before it becomes final. The opposition must be accompanied by a statement of grounds. The applicant then has the right to file a counter-statement within two months of receiving the notice of opposition. After exchange of pleadings, the Registrar hears evidence and decides the matter. The opposition proceedings provide an inter partes administrative mechanism to resolve conflicts before a mark is formally registered, reducing the burden on courts for post-registration rectification proceedings under Section 57.

Source note: Section 21, Trade Marks Act 1999

Correct answer: B. Confusion on the part of the public, which includes the likelihood of association with the earlier trade mark

Section 11(1) of the Trade Marks Act, 1999 prescribes relative grounds for refusal of registration. It provides that a trade mark shall not be registered if, because of: (a) its identity with an earlier trade mark and the identity of goods or services covered; or (b) its identity with or similarity to an earlier trade mark and the identity or similarity of goods or services covered, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. The phrase 'likelihood of association' was interpreted in K.R. Krishna Chettiar v. Sri Ambal and Co. (AIR 1970 SC 146), where the Supreme Court identified relevant factors including the nature of the marks, the nature of the goods, the class of purchasers, and the method of purchasing. The standard is not certainty of confusion but a reasonable likelihood thereof, assessed from the perspective of an average consumer of ordinary intelligence and imperfect memory.

Source note: Section 11(1), Trade Marks Act 1999; K.R. Krishna Chettiar v. Sri Ambal and Co., AIR 1970 SC 146