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of <h1>Trademark 'HAAGEN DAZS' upheld in court; phonetic similarity key. Price difference not a defense.</h1> The court upheld the interim injunction, emphasizing that both elements of the respondent's trademark 'HAAGEN DAZS' are dominant and deserve protection. ... Infringement in the use of trademark or not - Seeking interim injunction against the appellant restraining the appellant from using the mark ‘D’DAAZS’ or any other mark deceptively similar to that of the respondent-plaintiff’s trade mark ‘HAAGEN-DAZS’ in relation to ice cream - HELD THAT:- Since time immemorial the Supreme Court has consistently sounded a note of caution that the competing marks have to be compared keeping in mind an unwary purchaser of average intelligence and imperfect recollection - Consumers of any product do not deliberately memorize marks. They only retain a general, indefinite, vague, or even hazy impression of a mark and so may be confused upon encountering a similar mark. Consumers may equate a new mark or experience with one that they have long experienced without making an effort to ascertain whether or not they are the same marks. The consideration therefore is whether one mark may trigger a confused recollection of another mark. Thus, if the marks give the same general impression confusion is likely to occur. The ‘ordinary observer’ test is applied to determine if two works are substantially similar. The Court will look to the response of an ‘average lay observer‟ to ascertain whether a copyright holder's original expression is identifiable in the allegedly infringing work - Since it is employed to determine qualitative and quantitative similarity in visual copyright work, the said test can also be usefully applied in the domain of trademark law as well. The Courts have reiterated that the test for substantial similarity involves viewing the product in question through the eyes of the layman. A layman is not expected to have the same ‘hair-splitting’ skills as an expert. A punctilious analysis is not necessary. A layman is presumed to have the cognition and experiences of a reasonable man. Therefore, if a reasonable observer is likely to get confused between the two products then a copyright violation is said to take place - Transposing the said principles in the context of trademark infringement, one may venture to assess similarity and likelihood of confusion between rival marks on the touchstone of the impression gathered by a reasonable observer, who is a layman as opposed to a connoisseur. No interference is called for with the impugned order passed by the learned Single Judge. Consequently, the present appeal is dismissed. Issues Involved:1. Interim Injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure.2. Conflict of Trademarks.3. Principle of Anti-Dissection.4. Identification of Dominant Mark.5. Phonetic Similarity.6. Consumer Confusion and Impact of Price Difference.Detailed Analysis:1. Interim Injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure:The appellant challenged the order granting an interim injunction to the respondent, restraining the appellant from using the mark 'D'DAAZS' or any other mark deceptively similar to the respondent's trademark 'HAAGEN-DAZS' in relation to ice cream.2. Conflict of Trademarks:The respondent, a Delaware-incorporated company, claimed extensive global use and registration of the 'HAAGEN-DAZS' trademark. The appellant, manufacturing ice creams under the name 'D'DAAZS', argued that their mark was derived from a personal name and had been in use since 2009.3. Principle of Anti-Dissection:The appellant contended that the trademark 'HAAGEN DAZS' should be protected as an indivisible whole, not for individual elements. They relied on the principle of 'anti-dissection', emphasizing that 'HAAGEN' forms the dominant part of the respondent's trademark, and similarity with 'DAZS' alone should not constitute infringement.4. Identification of Dominant Mark:The respondent argued that 'DAZS' was not a non-dominant element and deserved protection. The court noted that both elements 'HAAGEN' and 'DAZS' are equally dominant in the respondent's trademark, rejecting the appellant's submission that only 'HAAGEN' was the dominant part.5. Phonetic Similarity:The court highlighted the importance of phonetic similarity in determining trademark infringement. It was noted that 'DAZS' and 'D'DAAZS' are phonetically similar, which could lead to consumer confusion. The Supreme Court's observation that phonetic similarity should not be disregarded even if the visual representation differs was emphasized.6. Consumer Confusion and Impact of Price Difference:The appellant argued that their product catered to a different consumer segment due to a significant price difference. The court rejected this argument, stating that ice cream is consumed by people of all ages and economic strata, including children who are not likely to discern such differences. The court also noted that consumer confusion is more likely with inexpensive products like ice cream, which are often bought impulsively.Conclusion:The court upheld the interim injunction, emphasizing that both elements of the respondent's trademark 'HAAGEN DAZS' are dominant and deserve protection. Phonetic similarity between 'DAZS' and 'D'DAAZS' was found significant enough to cause consumer confusion. The argument regarding price difference was dismissed, noting that ice cream is a product consumed across different demographics, and even sophisticated consumers are not immune to confusion. The appeal was dismissed, with a 30-day postponement for the appellant to exhaust existing packaging material.
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