When Two Trademarks Are Similar, But Not Identical

One of the most common misunderstandings in trademark law is that a trademark becomes a problem only when another business is using exactly the same name.

That is not the case.

Under the Trade Marks Act, 1999, a trademark may face an objection or dispute even when it is not identical, if it is sufficiently similar to an earlier trademark and is likely to cause confusion or association among consumers.

This is where the concept of "deceptive similarity" becomes important.

How do courts compare two trademarks?

There is no mathematical formula for deciding whether two trademarks are similar.

Courts generally look at the overall impression created by the competing marks. This can include their appearance, pronunciation, structure and meaning, along with the nature of the goods or services for which they are used.

For example, two marks may have different spellings but sound almost identical when pronounced. Similarly, two marks may use different words but create a similar overall commercial impression.

The relevant question is therefore not simply:

"Are these two names exactly the same?"

It is:

"Could an ordinary consumer reasonably be confused or believe that the two brands are connected?"

Changing the spelling may not be enough

Businesses sometimes try to avoid an existing trademark by making a small change to its spelling.

For example, changing one or two letters in a brand name may make the marks technically different, but that does not automatically remove the legal risk.

If the marks continue to sound similar and are being used for closely related goods or services, the difference in spelling may not be sufficient.

This is particularly relevant for brand names that are heard through word-of-mouth, telephone conversations, social media or verbal recommendations.

But every similar trademark is not necessarily a problem

The reverse is also important.

The mere existence of another trademark containing a similar word does not automatically mean that a new trademark cannot be registered or used.

The surrounding circumstances matter.

Two similar marks may sometimes coexist depending on factors such as the nature of their goods or services, the relevant consumers, the strength and distinctiveness of the earlier mark, and the circumstances in which the marks are being used.

A common or descriptive element may also have a narrower scope of protection than a highly distinctive trademark.

Therefore, a trademark search should not be reduced to simply finding a similar-looking name and immediately concluding that the proposed mark is unavailable.

Goods and services matter

The same or similar words can have very different implications depending on what they are being used for.

For instance, two businesses using similar names for completely unrelated areas may present a different situation from two businesses using similar names for competing or closely connected products.

This is why trademark examination under Section 11 involves not only comparing the marks but also considering the relationship between the earlier mark and the goods or services covered by the application.

The identity of the relevant consumers and the manner in which the goods or services reach them can also become important.

What about logos?

A common assumption is that changing the logo, font, colour or design will solve a trademark similarity issue.

That may not always be the case.

If the important or distinctive part of the mark is the same or highly similar, visual changes may not completely eliminate the risk.

At the same time, a logo can contribute significantly to the overall impression of a mark. Therefore, word marks and device marks need to be assessed according to their actual presentation and the circumstances of their use.

Why trademark clearance should go beyond an exact-name search

For a business launching a new brand, one of the biggest mistakes is checking only whether the exact name is already registered.

A proper trademark clearance exercise should consider:

similar spellings;
phonetic similarities;
similar-sounding names;
related goods and services;
the strength of earlier marks; and
relevant prior use.

This does not mean that every similar trademark will prevent registration. Rather, it helps a business understand the actual level of risk before investing heavily in a brand.

The bigger picture

Trademark law tries to balance two interests: protecting the goodwill associated with an existing brand and allowing businesses to adopt legitimate trademarks of their own.

That is why the law does not simply ask whether two trademarks are identical.

A difference of a few letters may not be enough in one case, while two marks containing a similar word may be capable of coexisting in another.

Ultimately, the assessment depends on the marks, the goods or services, the consumers and the surrounding circumstances.

For businesses, the practical lesson is simple:

Before adopting a brand, do not ask only whether the exact name is available. Ask whether the overall mark is sufficiently distinguishable from earlier trademarks in the market in which you intend to operate.

In trademark law, the question is not merely whether two marks are different.

The real question is whether the difference is enough.