In a significant judgment, the Delhi High Court clarified that while trademarks should be assessed as a whole, comparing dominant parts to determine similarity is not barred by the anti-dissection rule.
“It is necessary to note that the anti-dissection rule is not inconsistent with ascertaining whether the competing marks are similar by taking note of their dominant parts,” the Court observed.
This ruling came in the case Under Armour Inc v. Anish Agarwal & Anr, where the US-based sports brand Under Armour challenged the Indian company’s use of the mark 'AERO ARMOUR', alleging trademark infringement and passing off.
The division bench of Justices Vibhu Bakhru and Sachin Datta emphasized that the primary goal is to assess the overall similarity of trademarks. The Court held that although a trademark must be seen as a whole, the dominant features of each can be considered to evaluate consumer confusion.
“A strong registered mark with a distinctive portion may be infringed if a part of the later mark, which dominates the commercial impression, is identical to that portion.”
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Under Armour argued that 'ARMOUR' is a significant and dominant part of its brand identity, and the use of 'AERO ARMOUR' could mislead customers. The company highlighted its widespread use of ARMOUR-formative trademarks and global recognition since 1996.
The Court agreed with this contention, noting that similarities stemming from the use of 'ARMOUR' cannot be overlooked, especially considering the phonetic and structural resemblance between 'UNDER ARMOUR' and 'AERO ARMOUR'.
“It would be erroneous to ignore the similarity of the overall commercial impressions merely because parts of the marks are similar,” the Court stated.
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The bench rejected the single judge’s earlier reasoning that dismissed Under Armour’s claim due to differences in product themes (sportswear vs. military-themed casual wear). The Court clarified that both parties operate within the same trademark class and are active in similar online retail channels.
The judges also dismissed the argument that the price and consumer base were sufficiently distinct to prevent confusion, ruling that such factors do not outweigh the commercial impression of the mark.
“The average consumer would encounter the appellant's products using the mark 'UNDER ARMOUR' alongside the respondents' 'AERO ARMOUR' products within the same search bracket.”
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Recognizing Under Armour's significant goodwill and brand strength, the Court concluded that the mark deserved higher protection. It restrained the Indian company from using deceptively similar trademarks until the final outcome of the suit.
“Prima facie, the appellant’s trademark is a very strong mark… it is necessary to extend higher protection against competing marks,” the Court concluded.
Case title: Under Armour Inc v. Anish Agarwal & Anr
Case no.: FAO(OS) (COMM)
