Case Detail: Under Armour, Inc. Vs . Anish Agarwal: May 23, 2025:FAO(OS) (COMM) 174/2024: 2025:DHC:4243:High Court of Delhi: Hon'ble Mr. Justice Vibhu Bakhru and Hon'ble Mr. Justice Sachin Datta
Law Settled in the Case:
Initial Interest Confusion under Section 29 of the Trade Marks Act, 1999:
The court held that under Section 29(1), (2), and (4) of the Trade Marks Act, 1999, a registered trademark is infringed if a mark used by another party is likely to cause confusion or indicate an association with the registered trademark, even if the confusion is brief or momentary (Paras 102-103, 163).
Likelihood of Confusion:
The court emphasized that the test for trademark infringement is whether a customer of average intelligence and imperfect recollection, upon encountering the impugned mark, is likely to believe it is associated with the registered trademark, even briefly. (Paras 101, 104).
Dishonest Adoption:
The court reiterated that dishonest adoption of a mark, especially one that is phonetically and visually similar to a well-known registered trademark, warrants an injunction. (Paras 105, 108-110).
Degree of Protection for Strong Marks:
The court clarified that the degree of protection accorded to a trademark is proportional to its strength and recognition. A new entrant must maintain a greater distance from a strong, well-known mark to avoid infringement. In this case, the respondents’ use of "AERO ARMOUR," which bore phonetic and visual similarity to "UNDER ARMOUR" and was used in a similar manner (e.g., placement on sleeves), was deemed prima facie dishonest (Para 109).
Non-Dissection Rule and Global Appreciation Test:
While the learned Single Judge applied the anti-dissection rule and global appreciation test to assess trademark similarity (Paras 27-28), the appellate court found that the Single Judge erred in concluding no likelihood of confusion. The appellate court held that the phonetic and visual similarity between "AERO ARMOUR" and "UNDER ARMOUR," combined with similar trade channels and product placement, created a real likelihood of confusion, satisfying the infringement criteria (Para 104).
Sophistication of Consumers:
The court clarified that the sophistication or knowledge of consumers does not preclude trademark infringement. Even informed or sophisticated consumers may experience initial confusion, particularly due to modern business trends like trademark licensing or mergers, which may lead them to assume an association between similar marks. This was supported by references to cases like Institute Europeen D. Administration Des Affaires, Insead v. Fullstack Education Pvt. Ltd. [2023 SCC OnLine Del 3016] and Mobil Oil Corp. v. Pegasus Petroleum Corp. (Paras 53-58, 99).
Injunction for Infringement:The court held that where there is prima facie evidence of trademark infringement due to similarity and likelihood of confusion, an injunction is warranted. The respondents were restrained from using "AERO ARMOUR" or any mark deceptively similar to "UNDER ARMOUR" until the suit’s disposal, setting aside the Single Judge’s order that had denied a full injunction (Para 111).
Conclusion: The court allowed the appeal, emphasizing that even transient confusion caused by a deceptively similar mark constitutes infringement under the Trade Marks Act, 1999. The respondents’ use of "AERO ARMOUR" was found to be prima facie dishonest, given its similarity to "UNDER ARMOUR" and the appellant’s established reputation, leading to an injunction against the respondents.
