Brief customer confusion enough to prove trademark infringement: Delhi High Court

Momentary confusion in the mind of a customer is sufficient to establish trademark infringement under Indian law, the Delhi High Court has ruled, while passing an interim order to restrain an Indian clothing company from using the mark "AERO ARMOUR.".In a judgment delivered on May 23, 2025, a division bench of Justices Vibhu Bakhru and Sachin Datta set aside an earlier single judge ruling that had declined interim relief to American sportswear giant Under Armour, Inc. The Court held that the competing marks "AERO ARMOUR" and "UNDER ARMOUR", though not identical, were deceptively similar when viewed holistically."If the customer looking at the impugned marks associates the same with the appellant's marks even though for a brief period, the appellant's trademarks would be infringed... The duration of the confusion in the minds of the customer is not material," the Court added. .Under Armour Inc., incorporated under United States law with its registered office in Baltimore, Maryland, was founded in 1996 by Kevin Plank. The company manufactures and distributes sports apparel, footwear, and related products globally. Under Armour officially entered the Indian market in 2017 via Amazon Fashion and established its first retail store in New Delhi in 2019.It holds numerous trademark registrations in India for marks including 'UNDER ARMOUR', 'UA', and various 'ARMOUR' formative marks across multiple classes, particularly Class 25 covering clothing, footwear and headgear. Under Armour told the Court that it has used 'ARMOUR' and formative marks for over two decades and claimed significant global recognition and reputation.It accused an Indian company engaged in manufacturing and distributing clothing and footwear under the 'AERO ARMOUR' mark of trademark infringement. Under Amour (appellant) sued both the Indian company and its director and promoter, Anish Agarwal (respondents) before the High Court. The respondents operated a website at www.aeroarmour.store and had applied for registration of the 'AERO ARMOUR' under Class 25, which was advertised in the Trademarks Journal on June 27, 2022.Under Armour initiated opposition proceedings against the 'AERO ARMOUR' application and filed a suit for trademark infringement, passing off, and copyright infringement. The company sought an interim injunction restraining the respondents from using 'AERO ARMOUR', 'AERO ARMR' and similar marks.However, a single judge of the High Court disposed of the application with limited restrictions rather than granting the injunction. This was challenged by Under Armour before the division bench of the High Court. The respondents defended their mark, claiming inspiration from aviation (Anish Agarwal/ respondent no. 1 being an aeronautical pilot) and military themes, arguing their products cater to different markets with patriotic and defence-related designs distinct from Under Armour's sporting goods..The division bench held that the Initial Interest Confusion test was correctly applicable and that brief consumer confusion is enough for trademark infringement. The Court rejected the single judge's reliance on the "sophisticated consumer" argument from the Mountain Valley Springs case."The Initial Interest Confusion Test recognises that confusion in the minds of the customers arises only at the stage prior to consummating the purchase. However, at the time of completing the transaction, there is no doubt in the customer's mind regarding the origin of the goods. The confusion, albeit limited to the initial stage, is sufficient to satisfy the condition of deceptive similarity as contemplated in Section 29 of the TM Act," the division bench held. .The Court found that the single judge had erroneously applied the anti-dissection rule by effectively removing the common word 'ARMOUR' from comparison rather than evaluating the marks as a whole."The learned Single Judge appears to have approached the issue of determining the overall similarities between the marks by presuming that the word 'ARMOUR', which is common to the competing marks, was required to be excised for the purpose of appreciating whether the competing marks are similar. This is clearly contrary to the anti-dissection rule," the division bench held. .The Court further emphasized that Under Armour's trademark deserved heightened protection due to its established reputation and strength."Prima facie, in the present case, the appellant's trademark is a very strong mark, which has significant goodwill and therefore, it is necessary to extend a higher protection against competing marks, the use of which may have a propensity to take unfair advantage of the goodwill associated of the appellant's trademark," it said. .The Court also rejected artificial distinctions between "sportswear" and "casual wear" within Class 25, finding both parties manufactured identical categories of goods."The appellant's products are mainly apparels, which are commonly used as casualwear. Merely because some of the products are worn by sportspersons in sporting events, does not change the nature of the appellant's products.".The Court found that both parties used identical distribution channels, particularly e-commerce platforms, while rejecting arguments about different market segments."The appellant has placed on record screenshots of Google searches for the term 'armour clothes' that show products from both the appellant and the respondents for purchase on e-commerce platforms.".The Court concluded that there was prima facie phonetic and visual similarity between 'UNDER ARMOUR' and 'AERO ARMOUR' when viewed as composite marks."There is also phonetic similarity between the competing marks, considering that part of the rival word marks are identical," the Court ruled. .It found prima facie evidence of dishonest adoption based on the similarity of marks, manner of use, and the defendants' knowledge of Under Armour's reputation."The respondents being in the business of apparel and clothing would have known about the appellant's Trademark 'UNDER ARMOUR' and its worldwide reputation. Notwithstanding the same, the respondents had decided to adopt a mark, which prima facie bears phonetic and visual similarity with the appellant's trademark," the Court ruled. .The Court proceeded to grant an interim injunction in favour of Under Armour."In view of the above, the impugned order is set aside. The respondents are restrained from using the impugned marks or any other mark deceptively similar to the appellant's word mark 'UNDER ARMOUR' till the disposal of the suit.".Under Armour was represented by Senior Advocate Swathi Sukumar with Advocates S Bansal, Rishi Bansal, Mankaran Singh, Kartik Malhotra, Rishabh Aggarwal and Ritik Raghuvanshi..The respondents were represented by Senior Advocate J Sai Deepak with Advocates Samik Mukherjee, Manosij Mukherjee and Abhishek Avabhani..[Read Judgment]