Understanding the Concept of Phonetic and Visual Similarity Vis-A-Vis To Letter Trademarks Through Judicial Precedents

Abstract

The assessment of the distinctiveness of trademarks, despite the criteria outlined in the Trademark’s Act of 1999, specifically under sections 9 and 11, presents a formidable challenge, often necessitating the discerning perspective of the judiciary. As a fundamental guiding principle, both examiner and courts are obliged to evaluate a trademark as a unified entity. In recent years, there has been a discernible rise in the scrutiny of phonetic similarities between marks. The legal framework for dealing with the infringement of a registered mark due to phonetic resemblance is encapsulated within section 29(9) of trademarks act 1999. This section expressly stipulates that a mark may be infringed by the oral as well as the visual representation of words. The Supreme Court has consistently affirmed the imperative need to consider both auditory and visual aspects when comparing trademark. This paper delves into an analysis of numerous judgements handed down by the Supreme Court and various High Courts, primarily focusing on the assessment of both phonetic and visual aspects of trademarks. Special emphasis has been placed upon letter trademarks and their susceptibility to both visual and phonetic infringement. While trademarks typically encompass various elements such as devices, color combinations, letters and images, letter trademarks, often consisting of a single letter with descriptive trade connotations, are generally considered weaker trade makers. To establish trademark rights in such instances compelling evidence of usage is requisite. Conversely, trademarks comprised of more than one letter, devoid of descriptive elements pertaining to goods and trade, are regarded as stronger trademarks. In cases where a letter trademark incorporates a unique device, it offers robust protection for the trademark. This paper references multiple case laws where esteemed courts have recognised unequivocally rights with respect to letter trademarks.