Analytical Study of the Existing Law and Reported Case Decision Regarding Deceptive Similarity of Trademark Infringement

Abstract

The write up basically deals with the existing law and reported case decision regarding infringement of a trademark for deceptive similarity and confusion among the consumers. The Trademark Act 2009 provides that a mark should be distinctive and it will not be deceptively similar with other trademark and it does not provide any test to measure deceptive similarity. At the time of deciding the dispute between two parties in respect of infringement for deceptive similarity how the court take their decision by considering what circumstances. Through this write up I have tried to find out whether there is any ambiguity or not in the decision of the court, whether the decision of the court varies in same situation or not. If varies on what circumstances it is varied. At the time of taking decision whether the court consider all the possible facts to measure deceptiveness or not. After analyzing the cases, which are in respect of deceptive similarity filed before the high Court Division and Appellate division of Supreme Court of Bangladesh and also the cases of others countries, I found that there is no scale to test the deceptiveness. The deceptiveness is measured by considering the factual circumstances and it varies case to case even if same situation arises. Finally I recommend that there must have a guideline to test the deceptiveness. All the possible factors should be included in this list so that the court can consider all the facts at the time of taking their decision.