The term "deceptively similar" means that even if the similarities are not identical or similar, their deceptive nature, which can be perceived either through sound or look, that is visually or phonetically, can lead to the conclusion that the infringer's underlying intention or object is to profit from the prior user's reputation and good will, as the element of confusion involves the customer's state of mind when seeing the mark.¹ Imperfect remembering can lead to such confusion².

The question of whether two marks are "deceptively similar" or "similar" or "nearly resembling" or its equivalent arises in connection with trademark registration, i.e., during the process of filing a trademark application, in opposition and rectification proceedings, and in infringement and passing off actions³. The appearance of a trademark is crucial in determining whether or not it has been infringed upon. If you name your company JINX'S (pronounced "jinks"), you'll get in trouble with the well-known band INXS (pronounced "in excess"). Despite the fact that the two names have quite distinct meanings and do not sound comparable when pronounced, they would appear remarkably similar in print and on record covers.INXS is also a unique name, and the brand that owns it is well-known. It's risky to approach odd trademarks that name well-known items or services because "name recognition" of well-known marks is so high that people are likely to confuse comparable marks with the well-known ones. According to section 2(1)(h) of the Act⁴, a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion. The language in the definition is identical with what was contained in the repealed 1958 Act, vide section 2(1)(d)⁵. The expression “deceptively similar” or its equivalent is in use in the following provisions of the Act:

It appears that there is no major variation in the meaning of these terms based on the context in which they are employed in the Act. As defined by the notion of "deceptive resemblance," these expressions in various parts transmit and connote the same meaning and effect⁶. The rules established by courts in deciding whether two trademarks are deceptively similar would be equally applicable to determining whether two marks are similar or nearly resemble each other. PayPal v. Paytm is one of the current disputes. On November 18, 2016, PayPal Inc. filed an objection with the Indian Trademark Office accusing Paytm, an Indian mobile wallet company, of trademark infringement. Paytm had been gradually becoming a household name in middle-class India for six years – until November 8, 2016, when Indian Prime Minister Narendra Modi announced the demonetization of Rs. 500 and Rs. 1000 currency notes, thus nullifying 80 percent of the country's cash in circulation.This drastic measure was used to combat massive sums of unaccounted "black" money in the Indian economy, which was being utilized for bribery, corruption, tax evasion, and other illegal activities. The demonetization has resulted in an out-of-the-ordinary growth in electronic transactions, with Paytm being at the forefront. In the first 14 days after demonetization, Paytm's daily transactions increased tenfold, and the amount of money added to Paytm accounts increased tenfold.Paytm's rapid growth in such a short time garnered it not only enormous revenues and valuation, but also the interest of global competitors like as PayPal. PayPal accused Paytm of using the two-tone blue color combination of PayPal's own logo throughout, particularly where "the first word in each mark is in a dark blue color and the second syllable in a light blue color," according to the lawsuit. Furthermore, PayPal pointed out that both marks begin with the term 'PAY,' which customers remember more than the second syllable, despite the marks being of similar length. According to the Indian trademark law, an applicant must publicize and advertise their logo for a period of four months so that third parties might file objections. Paytm filed for a trademark on July 18, 2016, which implies the four-month window for filing a trademark expired on November 18, 2016. PayPal's complaint on the final day has prompted a lot of questions about why a company like PayPal, which has plenty of legal resources, would wait until the very last minute to file a complaint. Needless to say, the expansion of Paytm in a market that had previously been overlooked, underserved, and/or underperforming by PayPal only became a danger after demonetization.

A mark is deceptively similar to another mark if it resembles it so closely that it is likely to deceive or cause confusion, according to Section 2(1)(h) of the Trademark Act,1999⁷. This suggests that there are varying degrees of likeness. It is not enough to have some form of likeness for misleading similarity; the resemblance must be such that it is likely to confuse or cause misunderstanding. This definition is broad and does not limit the type of similarity that should be investigated. As a result, the court may take into account both the visual and phonetic likeness. It's also crucial to have similar thoughts represented by the marks. Similarity in the net impression generated in the mind, or similarity in the phrases or legends explaining the gadgets, for example, may be taken into account in the case of devices. However, the degree of similarity that is required is a matter that cannot be defined a priori due to the nature of things⁸. Each case must be decided based on its particular set of circumstances. As a result, decided instances are of limited use in determining the question of misleading similarity in a specific case. They are only valuable in the sense that they establish general principles.

The aspect of propensity to deceive or confuse in order to hold a trademark deceptively similar to another mark is the focus of the definition of "deceptively similar." Any mark that is so similar to another mark that it may cause confusion in the mind of a common consumer is to be viewed as deceptively similar to the other mark that is either already registered, exists in the market, or for which a prior application was filed⁹. A likelihood of confusion or deception exists when customers are likely to confuse the new name with the older and established trademark due to similarities between them. It's also worth noting the term "likely." It indicates that the only thing that needs to be established is the possibility of confusion. As a result, it is not required to demonstrate that there are no conditions that could cause confusion.¹⁰

The term "deceptively similar" is defined in such a way that it is not limited to any one sort of deceit or confusion. The following scenarios can lead to deception or confusion:

It is only proper to evaluate the objective consideration as well as the prior marks' degree of distinctiveness, including their public reputation, when considering deceptive similarity of trademarks. In order to determine whether the marks are deceptively similar, the following aspects must be considered:¹¹

The question of trademark similarity or the probability of deception or confusion emerging from their use should never be assessed in isolation, but rather in the context of the surrounding circumstances. The following aspects must be taken into account¹²:

These elements should not be considered separately. The weight that should be given to one component is frequently determined by the relative importance of the other factors.