Trademark Dispute : A Man of Average Intelligence and Imperfect Recollection
Name: Man of Average Intelligence and Imperfect Recollection
AKA: An Unwary Purchaser of Average Intelligence; Ordinary Man; a Customer of Average Intelligence;
Age: ~ 56 years [1958 possible year of birth]
Origin: Possibly the United Kingdom – Aquamatic Case
First Appearance in India: 1960
Known relatives: Reasonable Man (consults for negligence cases)
Strengths: Power to grant injunctions in cases of passing off
Weaknesses: Pharmaceutical products;
In trademark disputes Courts are often called upon to decide whether two trademarks are similar, and if they are similar to protect the rights of the person who started using the mark first. Under the law of passing off (when someone is trying to pass off their goods as someone else’s by adopting a similar trademark) the Courts look at several factors, as to whether the marks are similar, who the first user was, if any confusion between the two would arise and if the use of the mark affects the rights of the first user among other factors.
The first and foremost thing the Courts need to look into is whether the two trademarks are similar and a person buying the product or engaging the services would be confused between the two. This can be quite a challenge because most times it’s very subjective. What confuses me, need not confuse you. For instance, you may be able to tell the difference between Gluvita and Glucovita, but a person who is illiterate, or cannot read English is presented with both products at the shop just might be confused between the two (More so if he is dependent on the shopkeeper to pronounce the names; add to that the fact that the shopkeeper may be from another part of the country and his pronunciation would be considerably different and you have a complete mess for the poor consumer).
While a standard or rule cannot be fixed to determine what is similar and what is not, the Courts have to view the two trademarks from the point of view of a Man of Average Intelligence and Imperfect Recollection (“The Man”). Initially known as ‘a person with average memory but with his usual imperfections’ over time this chap has been known by many names. It is The Man’s responsibility to assist the court in determining whether the marks are different or whether he would be confused. This fictitious Man’s point of view is the yardstick that Courts would depend on.
His intelligence and recollection varies at times, because the stakes are different. In pharmaceutical cases, his observational skills are considerably lower because buying the wrong medicine could be disastrous. In the same way, if the product was for the erudite or well informed reader, the man of average intelligence is in fact more intelligent.
The Man also has to strike a balance between the plaintiff (the person approaching the Court) and the defendant (the one accused of passing off the goods). The Plaintiff would always want The Man to be slightly less intelligent than he normally is and confuse the products while the defendant would want the opposite.
Torn between two sides with no major rules to rely on, The Man has still done a great job over the years. He has been called on to serve justice on many occasions and I’ve listed out some of his ‘average’ work.
TRADEMARKS that confused The Man:
|Hello Fruit Beer||Perrys Fruit Beer|
TRADEMARKS that did not confuse The Man:
|Kellogg’s CORN FLAKES||AIMS ARISTO CORN FLAKES|
The list above is not all the times, that The Man has been called in to decide similarity, but it does give us a view as to what Courts think an average man would find confusing.
So when you read the news paper and someone was able to get an injunction against someone else on the grounds that E-square was similar to Esquire and you scoff at the how different they really are, just remember that the Court probably felt that a man of average intelligence would have been confused.
In today’s day and age with everyone on a quest to be and do extraordinary things, to be the best and have the best skills it’s interesting to know that some very valuable decisions are made from the point of view an average man and that too one with imperfect recollection!
Credit: One of our Interns, Adeeba Rahman, of National University of Advanced Legal Studies (NUALS), Kochi was responsible for the research and found over 50 cases where this test was applied by the Courts.