When Indian courts decide whether two marks are confusingly similar, they look through the eyes of a fictional shopper: a “man of average intelligence and imperfect recollection.” He is neither an expert nor a fool — and his memory is realistically imperfect.
Who the “man” is
Also called the “unwary purchaser of average intelligence” or the “ordinary man,” this figure originated in the UK (traceable to the Aquamatic case around 1958) and entered Indian jurisprudence around 1960. He captures a simple truth: confusion is subjective. A literate buyer might distinguish similar names, while an illiterate or non-English-speaking purchaser — relying on a shopkeeper’s pronunciation — could easily be misled.
The standard flexes with the product
Crucially, the man’s attentiveness varies with context:
- Pharmaceuticals — his guard is set lower, because getting the wrong medicine can be disastrous; courts scrutinise similarity more strictly (echoing Cadila, “drugs are not sweets”).
- Specialised or expensive goods aimed at educated buyers — he becomes comparatively more discerning, and small differences may suffice.
So the “average consumer” is really a sliding scale, calibrated to the goods and the likely buyer. (The Delhi High Court leaned on exactly this idea — “a person of average intelligence and imperfect recollection, not… an idiot” — in Britannia v. ITC.)
Marks courts found confusing
Amritdhara / Lakshmandhara · Betaloc / Betalong · Rolac / Torolac · Diclomol / Dicmol · Fevicol / Trevicol · Vicks / Vicas · Cheri / Cherish · Pioz / Piozed · Rumalaya / Rumalar · Hello Fruit Beer / Perry’s Fruit Beer.
Marks courts found not confusing
Complamina / Ciplamina · Kellogg’s Corn Flakes / Aims Aristo Corn Flakes · Chandamama / Chandrabala · Skincliniq / Clinique.
Why it matters when you choose a mark
- Clear against the standard, not your own eye. You know your brand; the ordinary shopper does not. Assess similarity as he would.
- Higher risk in pharma and everyday goods. The lower-attention consumer means closer marks are more likely to be blocked.
- Sound-alikes matter as much as look-alikes — imperfect recollection is often aural.
Frequently asked questions
What is the “average consumer” test in Indian trademark law? Confusion is judged through a fictional man of average intelligence and imperfect recollection — an ordinary shopper, neither expert nor careless.
Does the standard change by product? Yes. For medicines his attention is treated as lower (so stricter scrutiny); for specialised goods aimed at educated buyers, higher.
Why does imperfect recollection matter? Because buyers remember marks imprecisely, especially by sound, so phonetically similar marks are often held confusing.
Are look-alike or sound-alike marks riskier? Both — courts weigh visual and aural (and conceptual) similarity through the ordinary consumer’s imperfect memory.
Legislation referred to
- The Trade Marks Act, 1999