Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.,
AIR 2001 SC 1952: (2001) 5 SCC 73
Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
(a) The nature of the marks i.e., whether the marks are word marks or label marks or composite marks, i.e., both words and label works.
(b) The degree of resemblances between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods, and
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case.