The Mythical Customer: Average Intelligence and Imperfect Recollection
Delhi High Court’s decision in Intercontinental Great Brands v. Parle Product Private Limited and more...
Case in Focus
The Delhi High Court in the case of Intercontinental Great Brands v. Parle Product Private Limited (CS(COMM) 64/2021; decision dated 10th February 2023) has done a bit of course correction and reiterated that the test for likelihood of confusion must be from the perspective of a customer of average intelligence and such customer need not be a person who regularly partakes either of the plaintiff‘s or of the defendant‘s products, or is a devotee of either.
In this case, the defendant had launched cookies under the mark “FAB!O” which the plaintiff claimed was similar to its mark “OREO”. The Court observed that a customer of average intelligence, who has partaken of OREO cookies and, later, found ―FAB!O cookies in the market has every likelihood of presuming an association between the FAB!O, he saw later and the OREO that he had consumed earlier. No doubt, a customer who was actively conscious of the fact that OREO biscuits are manufactured by the plaintiff and FAB!O biscuits are manufactured by the defendant, may not be so confused, but then such awareness cannot be attributed to a customer of average intelligence. The mythical customer, from whose point of view the issue is to be assessed, is one who, on one occasion, has had the OREO cookies and, on a later occasion, has the FAB!O cookies.
Recently, in the Subway Case, the same Court had come to a contrary and (dare I say it) incorrect finding by stating that any possibility of confusion would stand foreclosed by the reputation commanded by the plaintiff in the market. The subway order has been subsequently set aside by the Division Bench and I feel the present case is the right approach.
Disclaimer- This Oreo judgement has also been challenged before the Division Bench but no stay order has been passed till date.
Event Update
One of the reasons I started this newsletter was also to provide young practitioners with insights into conferences and networking events. I remember being fresh into the profession with no idea how to find such events or make myself useful. I recently attended the UK IPO-INTA Brand Protection Strategies Conference on 24th February 2023, which brings me to the first point. Most of these events are sponsored either wholly or in part by different organisations and law firms- so the registration is free. There is absolutely no downside to attending such an event and if its free its easy to sell it to people upstairs. The UK IPO-INTA Brand Protection Strategies Conference started with an address by HMJ Prathiba M. Singh which was insightful but more importantly I got to interact with a sitting judge of the High Court in an informal setting which is beneficial for many reasons. This was followed by panel discussions sprinkled with speed networking sessions between the panel discussions. This brings me to the second part- a “networking” conversation isn’t different from any other conversation . There is no need to over-complicate or add any pressure. As the age-old advice says- it is more important to be interestED than be interestING. I could write a separate newsletter about this topic and maybe I will. Let me know if you all would like that.
Quote I’m pondering
“The ‘if I had time’ lie is a convenient way to ignore the fact that novels require being written and that writing happens a sentence at a time. Sentences can happen in a moment. Enough stolen moments, enough stolen sentences, and a novel is born - without the luxury of time.”- Julia Cameron, Author.