A recent judgment in the case of Mountain Valley Spring India Pvt Ltd v. Baby Forest Ayurveda Pvt Ltd has reaffirmed several critical legal standards in trademark infringement and redefined the “customer of average intelligence and imperfect recollection” test considering the evolution of customer awareness and brand identities.

In this case, the Plaintiff, Mountain Valley Springs India Private Limited, who are the owners of the luxury skincare brand Forest Essentials, sought for an ad interim injunction as part of a permanent injunction suit against the Defendants, Baby Forest Ltd, regarding the use of their marks ‘BABY FOREST’, ‘BABY FOREST–SOHAM OF AYURVEDA’, ‘BABY ESSENTIALS’, and ‘SAUNDARYA POTLI’ which were allegedly deceptively similar to the Plaintiffs trademarks ‘FOREST ESSENTIALS’, ‘BABY ESSENTIALS’, ‘FOREST ESSENTIALS-BABY ESSENTIALS’, ‘LUXURIOUS AYURVEDA’ and ‘SOUNDARYA’.

Plaintiff’s Contentions:

The plaintiff relied on their continuous use of the ‘FOREST ESSENTIALS’ mark since the year 2000 and their wide presence with over 150 stores in India and internationally, enjoying annual sales of over Rs.425 crores. They also asserted that the shared term “Forest” is a dominant feature of the plaintiff’s mark and given the overlap of the defendant’s mark in the class of goods that it would lead to confusion among the consumers and public at large. They alleged that the defendant was relying on the initial interest confusion of the consumers to sell its products.

Defendants’ Response:

The Defendants stated that they are not intending to use the marks ‘SAUNDARYA POTLI’ and ‘BABY ESSENTIALS’ and have undertaken so, in their reply to the cease-and-desist notice issued by the Plaintiff prior to filing the suit. Regarding the use of the other two marks, they argued that the Plaintiff could not claim monopoly over the word ‘FOREST’ since it is a common dictionary word and that there were 100 registrations in class 3 containing the word FOREST thus demonstrating that it is commonly used in this class.

After hearing both the parties, Justice Dayal, ruled in favour of the defendants and refused to grant the interim relief to the Plaintiffs. The judgement redefines several critical legal standards in trademark infringement particularly concerning “initial confusion test’, customer awareness and brand identity.

No right to claim a “Generic” term and trademark to be seen as a whole

Under the Trade Marks Act, 1999, generic terms cannot be claimed as trademarks in India. Sections 9(1)(b) and 9(1)(c) specifically prevent the registration of trademarks that are generic or commonly used in trade. This ensures that such terms are not monopolized by any single entity.

The Court in this case re-emphasises this provision through the judgment Vardhman Buildtech Pvt. Ltd. v. Vardhman Properties Ltd. (2016) 231 DLT 535 and states that registration does not confer exclusive right in part of the mark. The court further establishes that generic terms such as “forest” cannot be monopolized by any entity and reputation of the Plaintiff has only been built through the combination of the words “FOREST” and “ESSENTIALS”.

Evaluating Reputation and Goodwill of a mark

When evaluating the similarity of two marks, an essential component that is taken into consideration is the effect of the mark on the reputation and goodwill of the company. Factors such as market share, consumer awareness, media coverage, revenue trends, profit margins are all indicators of a brand’s reputation and goodwill that has been amassed over time.

The Plaintiffs in this case had established their alleged reputation and goodwill for the trademark ‘FOREST ESSENTIALS’ through showing evidence of sales of INR 15 crores worth of products which was significantly more than the defendant’s sales amounting to INR 2.26 crores. However, the judgment in this case contended that the sales were predominantly shown for the mark ‘FOREST ESSENTIALS’ and not for ‘FOREST ESSENTIALS BABY’. As a result, it was held that, financial disparity between the marks is not sufficient cause for the plaintiff to appropriate a monopoly over marks related to ‘FOREST’ nor to displace the defendants ‘FOREST BABY’ mark.

The Doctrine of Approbate and Reprobate

The doctrine of approbate and reprobate in simple terms means a company or an individual cannot both accept and reject the benefits and obligations of a legal decision. In this case, while applying for the mark ‘FOREST ESSENTIALS’, the Plaintiffs had received a relative ground objection in which similar marks containing the work ‘FOREST’ were cited. The Plaintiffs in their response to the examination report submitted that ‘FOREST’ is just dictionary term and no entity can be granted the exclusive right to monopolize the market of baby care products. As a result, the Court held that the Plaintiffs cannot have their mark granted by arguing that ‘FOREST’ is a generic term and their mark has to be taken as whole and then after registration, attempt to monopolise the term ‘FOREST’.

Customer of Average Intelligence Test – Digital Age and Consumer Awareness:

The legal standard of “customer of average intelligence and imperfect recollection” is used to decide the likelihood of confusion between trademarks and marks that have the potential to cause confusion among consumers.


Customer of Average Intelligence: This test assumes the perspective of an ordinary customer who is reasonably well-informed, observant, and cautious. The test places reliance on the trademarks being viewed through the lens of a consumer who is a layman and a general member of the public who purchases goods or services of the impugned marks. Indian courts rely on this test to protect consumers from being misled and to maintain fair competition in the marketplace.

Imperfect recollection: This part of the test assumes a consumer who does not remembers the specifics of a trademark but tend to only recollect general obvious and dominant facets and details of the mark.

Through the test the Court applies various metrics listed below to determine whether two marks would cause confusion among customers of average intelligence and imperfect recollection:

  1. Visual, Phonetic and Structural Similarity: Courts examine whether the visual appearance, structural nature, phonetic sound, and overall impression of the two trademarks are similar enough that consumers might confuse one for the other.
  2. Trademark taken as a Whole: This yardstick measures the overall impression created by the trademarks rather than focusing on minute differences. This includes the similarity in the marks’ dominant features.
  3. Category of Goods/Services: The similarity in the goods or services offered under the respective trademarks is also considered. If the goods or services are closely related, the likelihood of confusion increases.
  4. Class of Consumers and the Price of Goods: The habits of the typical consumer of the goods or services are taken into account. For example, consumers of luxury goods may be more discerning than those of everyday products.

However, in this case, the Court set out an additional evolved yardstick for the test. The judgment stated that merely a “slight possibility of some customers having a minor transient confusion sifting the brands”, will not be enough to satisfy the requirements of the test. Furthermore, the judgment highlights a modification of the understanding of the tenets of the test through the lens of modernization and presumes an increase of consumer awareness due to the digital era in which information is readily and easily available. The judgment states that due to the substantial amount of retail purchase, customers are far more sophisticated and do basic checks on the origin of a product before buying it. Moreover, the judgment contended the ‘widespread confusion’ cannot be inferred merely through a few social media references or google search algorithms, as these can be manipulated.

As a result of the evolved interpretation of the “customer of average intelligence”, the test of ‘initial interest confusion test’ that was initially discussed does not strictly apply when discerning the similarity between marks.

However, the presumption of greater consumer awareness due to easier access of resources and greater knowledge of the market will inevitably lead to a higher bar when adjudging the similarity between marks and may be a presumption that overestimates how much an average customer retains knowledge of marks and their willingness to spend time checking the origins of their products. The judgment therefore recognises a changing landscape of consumer behaviour and adds another tenet to the test.


In conclusion, the judgment in Mountain Valley Spring India Pvt Ltd v Baby Forest Ayurveda Pvt Ltd redefines critical nuances of intellectual property law and draws to the importance of re-evaluating legal standards. However, Justice Dayal’s interpretation that the initial confusion is ‘transient’ and assumptions of meticulous consumer behaviour due to easy access to information somewhat overlooks the significant impact that even temporary confusion of consumers can have on brand goodwill and consumer trust. This view also disregards the complexities of consumer behaviour and fails to acknowledge diverse consumer demographics and differing purchasing power.

As a result, the Plaintiffs in this case have sought for an appeal with the Division Bench citing that the learned single judge had erred in his interpretation of the test of ‘initial confusion’ having to subsist till the completion of the transaction. The appeal will be heard on September 9, 2024.

Written By Shehnaz Latheef