TESTING THE BOUNDARIES OF TRADEMARK LAW: A CRITICAL EXAMINATION OF TRADEMARK DOCTRINES

1. Introduction

In the Case of Under Armour Inc. v. Anish Aggarwal [FAO(OS) (COMM) 174/2024 & CM No.46175/2024 & 52564/2024] a Division Bench (consisting of Justice Vibhu Bakhru and Justice Sachin Datta) of the Delhi High Court laid down certain principles regarding trademark infringement on 23 May 2025. The case is about a trademark infringement between the globally famous American sportswear company Under Armour, (hereinafter referred to as the Appellant), and Indian Respondent who trade under the mark AERO ARMOUR. The Appellant filed a suit for infringement under Section 29 of the Trade Marks Act, 1999 [TM Act], stating that the impugned marks of AERO ARMOUR and AERO ARMR – were deceptively similar with its registered marks especially UNDER ARMOUR and would likely cause confusion among consumers.

The Appellant questioned the Order of the Learned Single Judge in refusal to grant an interim injunction based on the absence of confusion and distinction in the nature of goods and themes. The current Appeal is based on contentions including the misinterpretation of the initial interest confusion doctrine, failure to apply the anti-dissection rule correctly and neglect of the global appreciation test.

 

2. Factual Background

The Appellant, Under Armour Inc., was established in the USA in 1996 and is significantly present globally in sportswear and accessories. It has all registered trademarks under the name UNDER ARMOUR, ARMOUR and a logo “UA” registered in multiple jurisdictions, entering India in 2017 through Amazon Fashion and stationing its first shop in 2019. The independent word “ARMOUR” is not registered as a standalone mark in India but has been registered in the USA. The Respondents, an Indian corporation and a Promoter-Director, offered products under the brand AERO ARMOUR utilizing aviation and military-themed designs. They promoted the mark and operated a commercial website to sell their goods. The Appellant submitted a suit for infringement, pass off and other reliefs together with an interim injunction filed separately while the opposition proceedings are pending.

 

3. Issues

• Whether the impugned marks AERO ARMOUR and AERO ARMR are deceptively similar to the marks already registered by the Appellant, particularly UNDER ARMOUR?
• Whether the Learned Single Judge faulted while applying the initial interest confusion doctrine?
• Whether the distinction between sportswear and casualwear was valid to negate likelihood of confusion under Section 29?
• Whether not registering the individual mark ARMOUR in India weakens the Appellant’s infringement claim?
• Whether the Learned Single Judge failed to apply the global appreciation test correctly, including assessment of phonetic and visual similarity, strength of the mark, and nature of trade channels?

 

4. Analysis
5. A) Trademark Dormancy and the Anti-Dissection Doctrine

The Appellate Court upheld the ruling that composite marks are to be considered in totality, pursuant to the principle of anti-dissection. It was of the opinion that the Single Judge erred in excluding “ARMOUR” from consideration, observing that ARMOUR was the prominent and important element of both the appellants’ mark and the respondents’ mark.

The Court referred to ‘McCarthy on Trademarks and Unfair Competition’ and established precedents in which the Delhi High Court held that when part of a composite mark is not separately registered, dominance of such part can be considered in assessing the degree of similarity but not considered individually.

1. B) Lack of Consideration for Phonetic and Visual Similarity

The Learned Single Judge did not assess the phonetic, structural and visual similarity between AERO ARMOUR and UNDER ARMOUR. Both marks are in capital letters, there are no hyphens and both contain the word ARMOUR, increasing the chances of confusion.

1. C) The doctrine of initial interest confusion

The doctrine of Initial Interest Confusion was applied improperly by the Single Judge as per the Appellate Court. Whereas, the Single Judge had referred to the earlier Judgment of the Delhi High Court in Mountain Valley Springs v. Baby Forest (2024) to hold that confusion is transient, in opposition. The Division Bench relied upon the Judgment of Google v. DRS Logistics (2023) by the Delhi High Court, inter alia, to hold that confusion even at the point of initial consumer observation would be actionable under Section 29(1) of TM Act. Such confusion, once inevitably rectified at the point of sale, is still actionable as a lure to pull the customer’s attention with use of a confusingly similar mark.

1. D) Product and Outlet Similarity

The distinction between sportswear and casualwear on which Single Judge placed reliance was not reasonable. The Court found that both parties were dealing in the same type of goods under Class 25 (Nice classification) such as T-shirts, sweatshirts, caps, etc., since the Appellant’s sportswear is also worn for everyday use by consumers, who may search online for general terms such as T-shirts, but that both trademarks do not have to be used at the same time.

Screenshots of popular e-commerce platforms were shared to prove common trade channels such as Amazon Fashion and Myntra. So, the separation argument was found without merit. The Court also indicated that price variation alone will not dismiss confusion under TM Act.

1. E) The Appellant’s Mark

The Court stressed that UNDER ARMOUR is a strong mark which is internationally known including in India. Evidence of its use in various markets, endorsements and USPTO determination that classified it as a famous mark. Referring to earlier rulings, the judge reiterated that strong marks deserve greater protection and infringement are more likely to harm their owner.

1. F) Case Law Comparison

The Court of appeals saw a difference but nonetheless relied on the previous judgement of Under Armour v. Aditya Birla Fashion (2023), a case where STREET ARMOUR was found infringing. The Single Judge had relied on distinctions in the case pertaining to font and usage, but the Division Bench reiterated that the logic was the same and what is important in trademark protection is consistent.

 

5. Conclusion

The Appellate Court found the Learned Single Judge erred on the application of trademarks’ doctrines like the Anti-Dissection Principle, Global Appreciation Test, phonetic and visual/structural similarity and the initial Interest Confusion Doctrine.

It concluded that the marks AERO ARMOUR and AERO ARMR were prima facie deceptively similar to UNDER ARMOUR, and were used on the same trade channels. The division between market segments of sportswear and casualwear was arbitrary one not supported by evidence. Even Initial Interest Confusion was sufficient to establish consumer confusion under Section 29 of the TM Act.

The Appellate Court allowed the appeal, set aside the refusal to grant interim relief and ordered that:

• The Respondents are prohibited from utilizing “ARMR” on any goods.
• The AERO ARMOUR mark is prohibited from being used on shirt sleeves like it has been in the past.
• Respondents are limited to use of only the Device Mark, and not the Word Mark AERO ARMOUR, on the exterior, visible layers of clothing.
• They will not compete in the sportswear business while the litigation is ongoing.

This decision also highlights the development of trademark principles in India, particularly the acceptance of consumer perception, initial interest confusion and trans-border reputation in the time of digital marketplace.

 

BENJAMIN THOMAS

4^TH YEAR LAW STUDENT,

SYMBIOSIS LAW SCHOOL, HYDERABAD

 

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