When it comes to the protection of someone’s invention or creation, Intellectual Property Rights play the most crucial role in protecting the rights of the inventor. IPR is of different types such as Patent, Trade Secret, Trademark, Copyright, etc. In this article, we will be dealing in-depth with the topic of Deceptive Similarity which is one of the major issues that arise when comes to the protection of maybe trademarks, copyright, Patent, etc. Deceptive similarity refers to/deals with similar products, logos, brand shape, design, etc. in short the things that create confusion in the minds of the people. It damages the well-known created image of the brand. In this article we will also be dealing with the case of Atomberg Technologies Private Limited vs Polycab India Limited, In this case, the concept of deceptive similarity was seen. The deceptive similarity has been a headache for the whole world. Thus, there is a need for more strict laws to put an end to this problem.
Deceptive Similarity is the type of crime related to the trademark. Deceptive Similarity creates confusion in the minds of the consumer. The concept of deceptive similarity is defined under Section 2(h) of the Trade Marks Act, 1999 as “A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion.” In short, the trademarks of the brand should be different from each other so that they should not create any confusion in the minds of the consumer. As if any confusion takes place in the mind of the consumer between two brands then the consumer finally ends up taking that thing from the third person thus it causes loss for both parties.
If the trademarks are found to be similar to each other, then the registration of a trademark will be denied under Section 11(1) of the Trade Marks Act, 1999 as similar trademarks, logos, etc. will confuse the minds of the consumers. Thus, Section 11(1) of the Trade Marks Act,1999 states that “a trademark cannot be registered if it is deceptively similar, or identical, with the existing trademark and goods and services, that is likely to create confusion in the mind of the public at large”.
Atomberg Technologies Private Limited vs Polycab India Limited (2022)
Atomberg Technologies and Polycab are the two big giants in India. Atomberg Technologies is a firm that was established under the Companies Act of 1956 and is engaged in the production and distribution of fans and associated household appliances. While Polycab India is one of the well-known companies involved in the electrical appliance sector. The Advocate Mr. Kamod on the behalf of the petitioner (Atomberg technologies) without any notice moved to the defendant (Polycab). For the reasons outlined in paragraph 26 of the Plaint and paragraph 4 of the interim application, Mr. Kamod, Ld. Advocate for the petitioner, seeks to go forward without giving the defendant notice. When the issue was raised the learned counsel of the defendant Mr. Vinod Bhagat opposed the saying the application was being heard ex parte. He provided the mail that he has received from the defendant in which it was instructed him to appear when the matter was called out. And was also not provided with the copies of the papers and procedures that he has asked the petitioner’s attorney for. Thus, the defendant’s attorney requested some time. After the petitioner got to know that the defendant is selling a similar product then the petitioner conducted a search on the internet, and the website of the defendant he found that the defendant’s impugned fan bearing the impugned design and shape is available for sale on online shopping sites such as www.flipkart.com and www.amazon.in, including within the jurisdiction of this Court. The petitioner’s attorney submitted that this is a blatant infringement and also arranged the products of both the petitioner and the defendant to show that the product of the defendant is the exact replica of the petitioner in overall design, shape, and configuration. The petitioner has been selling ceiling fans under the name ‘Atomberg Renesa Ceiling Fan’ it is a unique and original design formerly known as ‘Atomberg Gorilla Renesa Ceiling Fan’. It appeared to the Petitioner that the defendant is selling the impugned fan under the name Polycab Wizzy / Polycab Wizzy BLDC 1200 MM. The petitioner’s attorney also mentioned that the customer usually purchases the Atomberg Renesa Ceiling Fan based on recollection of the design and aesthetic appeal of the fan. But as it creates confusion in the minds of the consumer it costs the petitioner the loss in his business and this is unfair competition as it amounts to passing off Polycab’s fan and business as that of the Atomberg’s.
Whether if this is the case of Deceptive Similarity?
Whether the defendant has replicated the trademark or not?
Observation of the Court
In the case of Atomberg Technologies Private Limited vs Polycab India Limited (2022), the court observed that the product of the defendant is the exact replica of that of the product of the petitioner. When the petitioner’s attorney presented the products of both the brands, Atomberg and Polycab before the High Court, it was observed by the Court that they are exactly identical to each other. The High Court also observed that the design, and products are so similar to create confusion in the minds of the consumer. The High Court in its observation stated that the petitioner would face irreparable damage, harm, and injury if the reliefs requested are not granted, Court also added that if there is “overwhelming prima facie infringement” of the plaintiff’s registered design and passing off of the goods.
The Bombay High Court after hearing the arguments of both sides gave the decision in the favor of the Mumbai-based firm Atomberg Technologies Private Limited is a commercial IPR suit. As it was observed by the court that the defendant has blatantly replicated the designs of the petitioner and has created the products from it. The High Court prohibited Polycab, the leading electrical appliance manufacturer firm from manufacturing, selling, marketing, selling, exporting, distributing, trading, displaying merchandise for sale, and promoting fans that have a shape or design which is deceptively similar to those products made by Atomberg Technologies. It finally thus gave the decision and restrained Polycab from creating or selling the product.
The Court in this case of Whirlpool of India, Ltd vs Videocon Industries, Ltd, (2014) found that the plaintiff had submitted a recording of the defendant’s washing machine with a different and unique boat design. The Court also stated that the standard for determining whether a design is legally protected is to consider how the offered designs would appear to the regular observer. In this case, the fan design of the defendant is similar to that of the plaintiff and is enough to create confusion in the minds of the consumer. Thus the Court gave the decision and restrained Polycab from creating or selling the product as it is an infringement of the petitioner’s product.
Trademark plays an important role in making any brand popular. As it is so important thus it increases the chances of getting misused or infringed on. Thus, in this blog, we discussed in detail the concept of deceptive similarity and its relation with the case of Atomberg Technologies Private Limited vs Polycab India Limited. As it was observed by the court that the defendant has blatantly infringed on the petitioner’s product it passed the order against Polycab restraining it from creating or selling it. From the concept we know that deceptively similar is nothing but the exact replica of each other. This leads to the conclusion that the owner cannot use or adopt another owner’s trademark as it creates confusion in the mind of the consumer and also destroys the reputation and goodwill of the company which the company achieved through hard work and dedication over the years.
Author(s) Name: Shubham Mahadeo Walunj (Savitribai Phule Pune University, Pune)