Who Is An Average Consumer With Imperfect Recollection?

1. INTRODUCTION

Recently, on 06.01.2022, a Single Judge of the Delhi High Court denied injunction to the brand owner of "Rooh Afza", namely Hamdard National Foundation (India) ("Plaintiff") in a suit for trade mark infringement brought against Sadar Dawakhana ("Defendant")for its use of  the mark "Dil Afza".¹

While denying the interim injunction, the Court applied the test of confusion from the standpoint of an "average consumer with imperfect recollection". The Court held that although the marks 'Rooh Afza' and 'Dil Afza' are used for similar products (syrup/sharbat), the rival marks were not identical. The Court noted  that the words, 'Dil' and 'Rooh' do not denote the same thing to a common consumer and therefore, there can be no confusion.