The current paper critically reviews the judicial tendencies in the context of visual and phonetic similarity of Indian trademarks, particularly in the context of the linguistic complexity of India. It analyses the Indian laws, points out the lack of comparative jurisprudence, and examines problems of confusion by consumers in both multilingual and online settings.
Trademarks play a major role because they pinpoint and differentiate the merchandise or offerings of one enterprise from another, while also establishing consumer confidence and brand awareness.
India possesses huge linguistic heterogeneity, and trademark parity assessments present particular difficulties. These assessments contemplate both visual and phonetic attributes.
Patrons encounter trademarks inscribed in assorted scripts like Devanagari, Tamil, Telugu, and Roman. These scripts shape perception as well as brand recollection. The semblance of trademarks pertains to visual likeness, while their sound includes phonetic resemblance.
Language and script impact consumer comprehension. As a result, such evaluations become more detailed within multilingual environments.
Even though this heterogeneity is realistically vital, Indian courts and legal literature have mainly tackled trademark resemblance from a theoretical viewpoint. They frequently disregard the way that India’s multilingualism confuses consumers in real-world settings.
This paper scrutinizes how linguistic variety affects trademark resemblance in India and how it influences consumer confusion. It leverages important jurisprudence and endeavors to propose pathways for subsequent legal and policy evolutions.
Literature Review
In this contrasting light, Indian trademark law, which is primarily governed by the Trade Marks Act, 1999 and judicial decisions, follows the principles of “likelihood of confusion” and “overall impression” to determine similarity in trademarks. Although Indian courts have laid down important precedents such as in the cases of S. Syed Mohideen v. V. Sundaram Bai and Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., the analytical frameworks used often remain less refined compared to international standards.
Most existing Indian literature focuses on doctrinal analysis of case law, summarizing judgments without engaging in deeper comparisons with global jurisprudence. For instance, the Polaroid factors do find mention in Indian jurisprudence, but few detailed and structured comparative studies exist between Indian tests and those used internationally. This absence limits understanding of India’s position relative to global best practices and restricts potential reform recommendations.
A second underexplored area is the impact of India’s vast linguistic and cultural diversity on the perception of phonetic similarity. With hundreds of languages and dialects—each with unique phonetic traits—how consumers hear and remember brand names can vary significantly. However, Indian trademark jurisprudence generally adopts a uniform approach, overlooking regional linguistic variations that may influence confusion. There is a complete lack of scholarly work empirically testing consumer perception across linguistic regions. The vague concept of the “average consumer” urgently requires research that reflects India’s socio-linguistic complexity.
The third major gap relates to digital and online marketing—an area that is rapidly evolving yet underrepresented in Indian legal scholarship. Globally, trademark law has adapted to challenges in e-commerce, online advertising, and digital brand representation. Issues like keyword advertising, domain name disputes, and SEO-related confusion have led to significant debates and case law, especially in the US and Europe. International courts grapple with adapting traditional trademark principles to the online realm, where digital algorithms and user behavior often override visual similarities.
Despite the rising significance of the digital economy in India, there is limited analysis of how Indian courts handle trademark similarity in online environments. The influence of digital marketing on consumer confusion remains largely unexamined. This gap is critical for understanding enforcement and protection of trademarks in today’s business ecosystem.
Overall, the literature reveals several under-researched areas in Indian trademark scholarship. The lack of comparative studies with international standards prevents a clear view of India’s position in global trademark jurisprudence. The absence of empirical research ignores the linguistic diversity that could impact trademark protection. Neglect of digital and online trademark issues risks leaving Indian law behind contemporary commercial realities.
Addressing these gaps is essential to align the theoretical and practical foundations of Indian trademark law. This paper seeks to contribute by examining the Indian judicial approach to visual and phonetic similarity from an international perspective and by highlighting challenges in the digital marketplace. It aims to offer a more comprehensive view of trademark similarity and outline directions for research and legal development.
Issue
At the core of this research lies the challenge of how Indian courts assess visual and phonetic similarity in trademarks—especially in relation to international standards and the demands of the digital marketplace.
English courts use an “overall impression” test, weighing visual, phonetic, and conceptual features to evaluate potential consumer confusion. However, a structured multi-factor analysis—common in international jurisprudence—has not been adopted in India. In the US, the Polaroid test (Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961)) includes factors such as the strength of the mark, the relatedness of the goods, and actual confusion.
The European Union follows a similar approach, starting with Sabel BV v. Puma AG (Case C-251/95 (1997)) and Canon Kabushiki Kaisha v. Metro-Goldwyn-Mayer Inc. (Case C-39/97 (1998)). However, these multifactor tests remain largely uncodified, leading to judicial discretion and sometimes unpredictable outcomes.
This raises a critical question: can Indian evidence and practice meet the rigorous demands of modern trademark litigation? The answer points toward a need for a more structured and comparative approach.
Second, the rise of e-commerce has introduced new challenges to trademark similarity. Traditional tests were rooted in physical or printed contexts, focusing on visual and phonetic aspects. In contrast, online branding raises new confusion points—keyword ads, search engine rankings, domain name disputes, and user interaction with digital platforms.
Indian courts have only recently started addressing these concerns. Notable cases like Consim Info Pvt. Ltd. v. Google India Pvt. Ltd. and MakeMyTrip India Pvt. Ltd. v. Booking.com B.V. reflect early judicial engagement with digital confusion. However, Indian research and jurisprudence in this area are still evolving, exposing both consumers and brand owners to increased risk.
Thus, this paper aims to critically examine India’s judicial treatment of trademark similarity, comparing it with frameworks like the Polaroid test (US) and the doctrine of global appreciation (EU). It also evaluates the suitability of these models in addressing modern-day issues, such as search engine algorithms, domain disputes, and consumer behavior in the digital space.
The ultimate goal is to expose doctrinal and practical loopholes in Indian law and suggest meaningful, comparative reforms for a more robust and modern approach to trademark protection—especially in the context of e-commerce and global business.
Rule
The Trade Marks Act, 1999 lays the foundation for analyzing visual and phonetic similarity in trademark disputes. It outlines grounds for refusal, standards for infringement, and judicial tests to assess deceptive similarity—focusing significantly on consumer confusion and contextual interpretation.
Definition of Deceptive Similarity – Section 2(1)(d)
Section 2(1)(d) defines a mark as deceptively similar when it closely resembles another in appearance, sound, or suggestion, such that it is likely to deceive or cause confusion. This forms the statutory basis for evaluating both visual and phonetic similarity.
Are deceptive, scandalous, or contrary to morality or public order.
Under Section 9(1)(c), any mark that could mislead the public regarding the product’s nature, quality, or origin is rejected.
Relative Grounds for Refusal – Section 11
Section 11 bars registration of marks identical or deceptively similar to earlier trademarks for similar goods or services, where confusion or association is likely. It serves to protect earlier rights and prevent consumer deception.
Prior Rights and Honest Use – Section 12
Section 12 reinforces protection for prior users, even if their marks are unregistered, and bars registration of similar marks likely to create unfair advantage or dilution.
Infringement – Section 29
Section 29 deems the unauthorized use of a mark as infringement if it is identical or deceptively similar to a registered trademark used for similar goods/services. Section 29(4) further penalizes misleading usage likely to confuse consumers.
Exceptions to Infringement – Section 30
This section outlines exceptions such as:
Honest concurrent use,
Use of one’s name or address,
Descriptive usage in good faith.
These exceptions ensure that not all similarity constitutes infringement unless accompanied by deceptive intent or confusion.
Protection of Unregistered Marks – Section 34
Section 34 protects owners of unregistered trademarks through the common law remedy of passing off, preventing others from using confusingly similar marks that may exploit existing goodwill.
Judicial Tests and Interpretation
Indian courts rely on an overall impression test, assessing the likelihood of confusion among average consumers. Factors include:
Visual and phonetic resemblance,
Nature of goods/services,
Trade channels,
Consumer awareness.
In Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. (2001), the Supreme Court clarified that contextual deception, not mere similarity, is key to determining infringement.
Comparative Outlook
Indian courts occasionally reference global benchmarks such as the Polaroid test (U.S.), and decisions by the CJEU and EUIPO, aligning domestic interpretations with global jurisprudence.
Application
Indian judiciary follows a contextual and consumer-based approach in determining the visual and phonetic similarity in trademark disputes. This pragmatic interpretation of the same is centered on impacts of consumer perception and market-facts on trademark confusion, particularly in a linguistically diverse nation, such as India.
Court Practice of Similarity Tests of Appearance and Sound
The Indian courts have repeatedly emphasized that the similarity of trademarks should not be assessed by the application of some rigorous tests, but in a more flexible, fact-based inquiry.
In Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 S.C.C. 73, the Supreme Court stressed the “Overall Impression Test”, according to which the likelihood of confusion is determined by the combined effect of visual, phonetic and conceptual similarities. This test enables the judiciary to balance various factors according to the circumstances of the case.
Also, in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical (1965), the Court recognised that “the sole use and prolonged market association” are relevant towards haunting the consumer connection with a mark. In cases where a trademark is deeply incorporated in the consumer’s mind as a result of its exclusive and constant use, the bar of deceptive similarity is set at a keener edge, particularly when a rival mark plies within the same sphere.
The doctrine of honest concurrent use was developed by Amritdhara Pharmacy v. Satya Deo Gupta (1963). The Court acknowledged that in cases where a party has openly, consistently, and in good faith used a mark over a period of time, the infringement actions can be diluted. This demonstrates a practical judicial interpretation which takes into account commercial co-existence and history of use of the marks, balancing fairness and market forces.
Indian courts also place a lot of importance on phonetic similarity, particularly where there are small visual differences but the general sound of the mark may be confusing to the average consumer. Since India is a multilingual society, the courts realize the difference in terms of pronunciation and script, and similarity judgments are made based on linguistic and regional realities.
Besides, procedural factors like the timing of claiming a legal right, the presence of evidence, and the opinion of society—shaped through advertising, marketability, and consumer accessibility—are critical in adjudication. Therefore, courts, when involving similarity standards, rely not on abstract theories but on practical realities of consumer knowledge and business practices.
Linguistic diversity in India creates a serious challenge in the examination of trademark similarity. With dozens of regional languages and scripts, consumers tend to perceive trademarks differently, depending more on phonetic familiarity than on visual uniqueness. Such language variability commonly causes practical confusion, particularly when phonetic similarity overrides script-based dissimilarity.
As seen in regional trademark cases, consumers can find marks similar although the visual representation differs—because of sound patterns of pronunciation across various languages. For example, a uniquely identified mark in Hindi script may sound similar to another mark in Telugu or Bengali script, causing confusion in multilingual markets.
The increasing pertinence of regional language trademarks is highlighted in an article by SonisVision titled “Regional Language Trademarks in India: Navigating the Nuances”. It underlines that companies expanding into new linguistic markets should consider phonetic overlaps and script differences that may lead to unintentional violations and customer confusion.
In line with this, in their systematic review, authors Chauhan and Sagar (2021) emphasize the need for empirical consumer perception research, particularly in multilingual markets such as India, in their article titled “Consumer Confusion: A Systematic Review and Research Directions”. Their contribution points to a lack of research addressing the influence of linguistic diversity on trademark interpretation, a gap that should be addressed through wider empirical studies.
Moreover, online marketplaces add to consumer confusion, as users come across brands across linguistic and regional borders without physical validation. In 2025, the Wagh Bakri Tea Group initiated legal action before the Gujarat High Court against a tea brand named Waah Bagdi Baba Chaa on grounds of trademark infringement and passing off. They claimed that the defendant’s name was confusingly similar and likely to mislead consumers due to phonetic similarity. The case highlighted the importance of brand image and protection in the beverage sector of the FMCG industry. It reflected broader concerns that regional and humorous branding techniques might breach legal standards.
In another case in 2025, the Delhi High Court awarded ₹339.25 crore in damages against Amazon for willful trademark infringement. The court held that Amazon’s use of its private label’s logo termed “Symbol” was misleadingly close to the Beverly Hills Polo Club (BHPC) logo. Amazon was held liable for selling and listing infringing goods without authorization. The case established a strong precedent on platform liability and brand protection under Indian trademark law. Both Wagh Bakri vs. Waah Bagdi Baba Chaa and Amazon vs. BHPC demonstrate how phonetic and visual confusion can be amplified by digital spaces, impacting both consumers and brand owners.
The fact is that linguistic and regional clarity is not merely desirable but a necessity in a country where differences between languages and scripts are profound enough to cause consumer confusion. In this respect, the meaning of visual and phonetic similarity extends beyond technical evaluation and is strongly influenced by how an average consumer perceives a mark within their linguistic and cultural context.
Consumer perception should be the primary criterion in judicial reasoning, and it also informs brand strategy. Hence, it is important to adopt a contextual and dynamic legal framework that allows trademark law to be flexible and responsive to evolving commercial practices, while being sensitive to the distinct demands of India’s multilingual, multi-scripted, and culturally rich marketplace.
Conclusion
The wide variety of languages spoken in India complicates assessments of visual and phonetic similarity. Modern jurisprudence based on deceptive similarity and likelihood-of-confusion tests does not always account for the multifaceted formality used in the U.S. and E.U.
While the Supreme Court’s reliance on overall impression and consumer perception is valid, its application has been inconsistent and often disregards regional scripts, phonetic overlaps, or digital market dynamics. The explosion of e-commerce has introduced new confusion vectors—keyword advertising, algorithmic ranking, and domain disputes—which current legal doctrines are ill-equipped to handle.
Additionally, the lack of historical data on multilingual consumer perception further hinders doctrinal development. This paper advocates for a shift to a more codified and consumer‑oriented regime that:
includes a customized multi-factor test,
mandates empirical consumer research for each linguistic market, and
explicitly extends trademark frameworks to digital platforms.
Such reforms would align Indian practice with international best practices and incorporate local linguistic realities to achieve fair, predictable, and effective trademark enforcement.
References:
Syed Mohideen v. P. Sulochana Bai, (2015) 7 S.C.C. 465 (India).
Amritdhara Pharmacy v. Satya Deo Gupta, I.R. 1963 S.C. 449 (India).
Bhavpreet Soni, Regional Language Trademarks in India: Navigating the Nuances, SonisVision Blogs (Jan. 31, 2024), https://www.sonisvision.in/blogs/regional-language-trademarks-in-india-navigating-the-nuances.
Vishakha Chauhan & Mahim Sagar, Consumer Confusion: A Systematic Review and Research Directions, Consumer Mktg. (June 8, 2021), https://doi.org/10.1108/JCM-03-2020-3705.
Wagh Bakri Tea Grp. v. Waah Bagdi Baba Chaa, (Guj. H.C. May 19, 2025) (per complaint), Wagh Bakri sues ‘deceptively similar’ tea brand, Times of India (Ahmedabad ed.), https://timesofindia.indiatimes.com/city/ahmedabad/wagh-bakri-sues-deceptively-similar-tea-brand/articleshow/121254037.cms.
