The Division Bench of Hiralal Parbhudas vs Ganesh Trading Company, AIR 1984 Bom 218 has laid down a comprehensive guideline determining “Deceptive Similarity”. This is of high significance since, our courts have denied keeping two products side-by-side for comparison to prove trademark infringement.

• Factors Laid Down by the Court for Consideration:

1. Marks are remembered by the general impressions or by some significant detail rather than by a photographic recollection of the whole;
2. Overall similarity is the touchstone;
3. Marks must be looked apart from the first impression of a person of average intelligence and imperfect recollection;
4. Overall structure, phonetic similarity and similarity of idea are important and both visual and phonetic test must be applied;
5. Marks must be compared as whole, microscopic examination being impermissible;
6. The broad and salient features must be considered for which the marks must not be placed side by side to find out the difference in design.
7. In addition, the nature of the commodity, class of the purchasers, the mode of purchase and other surrounding circumstances must also be taken inconsideration

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