No protection if mark tweaked to exploit semi-literate market
30th January, 2013
The Intellectual Property Appellate Board (IPAB) has held that trademarks ‘KRT’ and ‘PRT’, in respect of food articles, are deceptively similar having conceptual similarities. The Board noted that the goods, namely rice, was procured by semi-literate and uneducated masses on trust with an imperfect picture of the goods and hence the class of customers could be easily duped. The argument that no one got confused for so many years was rejected, noting respondent’s relatively small turnover.
The IPAB noted that both the parties were in the same trade, trading in everyday mass consumption product, selling from the same shop where goods are ordered orally at the sales counter and noise factors like traffic at sales point is likely and hence the alleged phonetic dissimilarities of the two marks do not merit particular importance. The Board, considering the realities of Indian market, held that semi-literate customers cannot be expected to have the skill, acumen and intelligence to make a fine distinction between the two closely resembling marks which also resemble phonetically.
Respondent’s plea that the appellant had included the product ‘rice’ in its application only after the respondent had filed its application, was also rejected, noting that the appellant was first in business with his trademark. The Board ordered removal of the trademark ‘PRT’ from the register as it was held as hit by Section 11(1) of the Trademarks Act and not eligible for protection under Section 9. [Pawan Kumar Sushil Kumar Agro (P) Ltd. v. Shriniwas Jhawar – IPAB Order No. 4/2013, dated 4-1-2013].