When can surveys be used in Indian trademark cases?

In proving “likelihood of confusion” where plaintiffs assert deceptive similarity in trademark infringement cases, two types of evidence have been traditionally put before Indian courts. The first involves a visual comparison of the marks. The second relies on the use of trade experts (experienced industry professionals) to strengthen the visual comparison claim. While the Trade Marks Act, 1999, mandates a statutory presumption (albeit rebuttable) of confusion in the case of a contest between identical trademarks straddling identical classes of goods or services, the burden of proving confusion lies with the trademark owner in all other cases.

Courts and tribunals in India have accorded a degree of approval to survey evidence aimed at demonstrating consumer confusion, but the use of survey evidence has not become a routine practice. Courts and tribunals sometimes hold that survey evidence is inadmissible because of lack of relevant questions, poor methodology, lack of objectivity, hearsay issues, etc. However, surveys may be useful when public opinion is considered for the purpose of determining likelihood of confusion, distinctiveness, strength of the mark, etc.

Over the past two decades a body of case law has been established on submitting survey evidence in Indian trademark cases.

Ameet Datta (ameet@saikrishnaassociates.com) is a partner at Saikrishna & Associates, where Suvarna Mandal (suvarna@saikrishnaassociates.com) is an associate.