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 to other trademarks 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, and 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 the decision on whether the court considers 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 the Supreme Court of Bangladesh and also
the cases of other countries, I found that there is no scale to test the deceptiveness. 

Deceptiveness is measured by considering the factual circumstances and it varies from case to case even
if the 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.