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

By Rima Majumdar and Anuj Dhar

Introduction

In a significant judgement dated May 23, 2025, the Division Bench of the Delhi High Court in Under Armour Inc. vs. Anish Agarwal & Anr[1], overturned the decision of the Learned Single Judge (the same can be read here), who had refused to grant interim relief to the global sportswear brand, Under Armour (hereinafter the Appellant). The Court deals with the issues of anti-dissection, global appreciation test, and the concept of initial interest confusion in the present case. The appeal arose out of the Single Judge’s order vide order dated May 29, 2024[2] which disposed of the interim relief application of the Appellant on the following grounds:

1. The Appellant had not secured any standalone registration of the word ‘ARMOUR’ as trademark in India, though it is registered as trademark in other jurisdictions globally.
2. The Appellant had in earlier opposition proceedings, argued that its mark ‘UNDER ARMOUR’ should be viewed as a whole and is dissimilar to the cited marks, which included the word ‘ARMOUR’. The learned single judge held that Under Armour was estopped and cannot reverse its position to claim exclusive rights with respect to part ‘ARMOUR’ of its trademark.
3. The Anti-Dissection Rule does not permit the dissection of the mark to consider the use of ‘ARMOUR’ as infringing the trademark of ‘UNDER ARMOUR’.

Appellant’s grounds:

1. Trademark Registrations and Brand Recognition:
   Under Armour Inc., incorporated in the United States in 1996, is a brand engaged in the business of manufacture, distribution and sale of variety of goods including apparels and footwear. The Appellant holds registrations for several trademarks, including:

   table

   S. No.	Registration No.	Trademark	Class	Status
   1.	1788950	UNDER ARMOUR	18,25,28	Registered
   2.	3970906		18,25,28,35	Registered
   3.	1317481		25	Registered
   5.	3970909	ARMOURVENT	25	Registered
   6.	3970911	ARMOURFLEECE	25	Registered
   7.	3970912	ARMOURBLOCK	25	Registered

2. Deceptive Similarity and Dominant Effect:The Appellant argued that the competing marks ‘AERO ARMOUR’ and ‘AERO ARMR’ were allegedly deceptively similar in structure, phonetics and overall impression. Despite “ARMOUR” not being registered in isolation, it formed a dominant element of their brand identity and was heavily used in Appellant’s trademarks. A comparative analysis of the marks is provided herein:
   
3. Market Overlap and similar consumer channels:
   Emphasizing the Doctrine of Initial Interest Confusion, the Appellant contended that both parties operated in the same class, i.e., Class 25, and marketed goods through similar trade channels and online platforms, which furthermore increased the likelihood of consumer confusion.

Respondent’s grounds:

1. Trademark Applications of the Respondent include:

   table

   S. No.	Application No.	Trademark	Class and Goods	Status
   1.	5398267	Aero Armour (Word mark)	25 (Clothing and Footwear)	Opposed
   2.	5398244		25 (Clothing and Footwear)	Registered

2. No Proprietary rights in respect of the standalone mark “ARMOUR” :
   The defendants submitted that “ARMOUR” is a generic and descriptive word commonly associated with the protective metal covering worn by warriors in a battle and is used widely across industries including apparel. Furthermore, the Appellant did not have a secured a standalone registration of the word “ARMOUR” in India, therefore, could not claim exclusive rights over its use.
3. Overall Dissimilarity of the competing marks:
   The Respondents asserted that the trademarks must be compared as a whole and that the mark “AERO ARMOUR” was distinct from the competing mark “UNDER ARMOUR”. The prefix “AERO” was thematically linked to aviation, contrasting with the word “UNDER” and created a different overall commercial impression, sufficient to prevent confusion among consumer with average intelligence.
4. Thematic and Market Differentiation:
   The defendants claimed their branding drew inspiration from military and aviation themes. Their logo ‘’ combined the elements of a shield, an airplane and stripes symbolizing military and aviation theme inspiring their products Furthermore, their use of distinct visual branding featuring stylized logos slogans like “WEAR YOUR VALOUR”, meant to evoke themes of patriotism, courage and national defense. This, they claimed, contrasted sharply with Under Amour’s sport-performance aesthetic, making any association or confusion unlikely.
5. Independent Adoption of the Mark:Respondent No. 1, being a former aeronautical pilot, claimed to have adopted the mark “AERO ARMOUR” independently drawing inspiration from aviation and military themes. Thus, the Respondents adoption was bonafide and a result of his personal and professional inspiration.

Legal Issues considered by the Division Bench and its subsequent findings:

1. Application of the Rule of-Dissection and analysis of the dominant part of the trademark.The Division Bench held that the anti-dissection rule, was misapplied by treating “ARMOUR” as an ordinary, non-distinctive word without considering its dominant role in the Appellant’s trademark and brand image, reiterating that while composite marks must be viewed as a whole, it is legally permissible and often necessary to identify the dominant element while assessing the likelihood of confusion. Hence, observed that “ARMOUR” is not just a descriptive term, but an integral source and identifying feature of the Appellant’s trademark, despite not being registered independently.
2. Recognition of Initial Interest Confusion:The Division Bench expressly recognized the relevance of the Doctrine of Initial Interest Confusion, which arises only at the stage prior to consummating the purchase. The confusion is limited to the initial stage, when a consumer’s attention is diverted/confused based on a misleading similarity, even if it be momentarily, would be sufficient to establish infringement of a trademark. However, at the time of completing the transaction, there is no doubt in the consumer’s mind regarding the origin of goods.  The Hon’ble High Court observed that even a transient confusion at the initial point of engagement is sufficient to make prima facie case of infringement.
3. Dishonest Adoption by the Respondents
   The Hon’ble High Court observed that prima facie the use of the Respondent’s mark may not be entirely honest, by virtue of deceptively similar use by Respondents of the mark ‘AERO ARMOUR” across the length of the sleeves as that done by the Appellant’s word mark “UNDER ARMOUR”. A representation of the same is provided:
   
4. Assessment of Dissimilarity using the Global Appreciation Test:
   The Learned Division Bench applied the global appreciation test, which requires a comprehensive evaluation of the competing marks in their entirety, considering visual, phonetic, and conceptual similarities, the nature of goods, the target consumer base, and overall impression created by the marks on an average consumer with imperfect recollection. The Division Bench concluded that the competing marks are sharing the word “ARMOUR” being identical and prominently placed in both, additionally given that both marks pertaining to class 25 are sold through overlapping channels, there exists a high likelihood of consumer confusion including the possibility of assuming a connection or brand extension.
5. Identical Goods manufactured by both parties and Irrelevance of Thematic Differences
   The Division Bench was of the view that both parties deal in identical goods, being apparels under class 25, further emphasizing that the products are marketed and sold through similar trade channels and online ecommerce platforms, where consumer engagement is often impression based.The Learned Division Bench contended that differences in brand theme being military vs. athletic was not sufficient to eliminate confusion between the two competing marks, and held that such differences do not negate trademark infringement, especially when the competing marks are deceptively similar and the goods fall under the same classification.

Judgement:

Based on the findings and observations above, the Learned Division Bench reversed the order of Learned Single Judge and granted interim relief, restraining the Respondents from using impugned marks or any other mark deceptively similar to the Appellant’s word mark “UNDER ARMOUR” till the disposal of the suit.

Author’s Note:

The Delhi High Court’s decision in Under Armour Inc. vs. Anish Agarwal & Anr provides insights into addressing the trademark similarity in fast moving online market. A key takeaway being the Hon’ble High Court’s recognition that even initial confusion-where a consumer is misled at first glance is enough to amount to infringement, even if they realise the difference later. The judgement highlighted that the duration of confusion in the minds of customer is immaterial, being a relevant concept, especially for online ecommerce platforms, where often consumer engagement is brief and based on initial impression. This is especially important in digital shopping, where customers often quickly scroll through brands and may not spend time checking details.

Another key point being Court’s approach to anti-dissection principle. While marks must usually be looked at as a whole, the court rightly acknowledged that a dominant element like “ARMOUR” can be central to assessing similarity, even in composite marks. The ruling rightly pointed out that consumer perception matters the most, focusing on how an ordinary shopper might see and react to the marks.

Hansika Bajaj, Assessment Intern at S.S.Rana & Co. has assisted in the research of this article.

[1]2025:DHC:4243-DB

[2]2024:DHC:4738