Infringement, unlike passing off, is to be decided on a plain comparison of rival marks. Goodwill and reputation have little, if any, part to play. The matter has to be examined from the perspective of a customer of average intelligence and imperfect recollection, who is neither a genius nor a fool. One may, in a sense, liken him to Laxman’s immortal ‘common man’ who, even while being observant and discerning, always has a slightly befuddled look on his face. The classical test is whether such a consumer, endowed with average intelligence and imperfect recollection, who chances on Plaintiff’s mark at one point of time and on Defendant’s some time later, is given to wonder whether he has seen the mark, or a mark associated with it, earlier. What is required, for infringement to be said to exist, is ‘initial interest confusion’. In other words, if initial interest generated by seeing Defendant’s mark places a consumer in a ‘state of wonderment’ [Shree Nath Heritage Liquor (P) Ltd. v. Allied Blender & Distillers (P) Ltd., 221 (2015) DLT 359 (DB)].

Plaintiff has, in my view, a clear prima face case.

– Hon’ble Justice C. Hari Shankar of Hon’ble High Court of Delhi, Foodlink F & B Holdings India Private Ltd. v. Wow Momo Foods Private Limited, [CS(COMM) 848/2022] decided on 03.08.2023.

US Court of Appeals for Second Circuit applied Doctrine of Initial Interest Confusion in Grotrian, Helfferich, Schulz, Th. SteinwegNachf v. Steinway & Sons, 523 F.2d 1331 (2d Cir. 1975). This is one of the earliest cases where Doctrine of Initial Interest Confusion was applied.

– Hon’ble Justice Vibhu Bakhru and Hon’ble Justice Amit Mahajan of Hon’ble High Court of Delhi, Google LLC v. DRS Logistics (P) Ltd., [FAO(OS) (COMM) 2/2022] decided on 10.08.2023.