Trade mark deceptive similarity test: "Medisprin" was held distinct from "Disprin" with no likely confusion.

In assessing deceptive similarity under the Trade and Merchandise Marks Act, the relevant enquiry is whether the rival mark, taken as a whole, is likely to deceive or cause confusion, rather than whether it differs only on microscopic comparison. Applying that test, "Medisprin" was found visually, phonetically and structurally distinct from "Disprin". The Court also noted that the products differed in nature, use, packing, price and mode of marketing, and that the Schedule H status of the defendants' product reduced the likelihood of confusion. On that basis, no infringement or passing off was established and interim restraint was refused.

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Issues: Whether the defendants' mark "Medisprin" was deceptively similar to the plaintiffs' registered mark "Disprin" so as to amount to infringement and passing off, and whether the surrounding factors of the nature of the goods, packing, mode of sale and Schedule H status gave rise to a likelihood of deception or confusion.

Analysis: The governing test under Section 2(1)(d) of the Trade and Merchandise Marks Act, 1958 is whether the rival mark so nearly resembles the registered mark as to be likely to deceive or cause confusion, judged by the overall impression of the mark and not by microscopic comparison. Applying that test, the mark "Medisprin" was held to be visually, phonetically and structurally different from "Disprin" because it begins with a different prefix and is pronounced differently as a whole. The Court also treated the products as different in nature, since the defendants' product was a coronary vasodilator for heart and vascular ailments, while the plaintiffs' product was an analgesic for common ailments. The packing, price and mode of marketing were also found to be dissimilar, and the Schedule H character of the defendants' product supported the absence of likely confusion.

Conclusion: The mark "Medisprin" was not deceptively similar to "Disprin", and no likelihood of confusion or passing off was established; the request for interim restraint failed.

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