By Rima Majumdar and Aashi Nema
Introduction
Since the publication of an earlier article examining the evolving contours of the “average consumer test in an informed society” [Read here: https://ssrana.in/articles/the-average-consumer-test-in-an-informed-society/], the Division Bench of the Delhi High Court has now delivered its judgment in Mountain Valley Springs India Pvt. Ltd. Vs. Baby Forest Ayurveda Pvt. Ltd. FAO (OS) (COMM) 111/2024, decided on February 27, 2026. The decision provides important clarification on the relationship between modern consumer behavior and traditional trademark confusion tests.
The appeal arose from the order of the Single Judge refusing interim injunction against the use of the mark “BABY FOREST” by the Defendant for their baby care products, which was alleged by the Plaintiff to be deceptively similar to its trademark FOREST ESSENTIALS. The Ld. Single Judge had reasoned that in contemporary markets, particularly in the context of premium products, consumers are more informed and capable of verifying the origin of goods. Consequently, even if a consumer initially experiences a “state of wonderment,” they may verify the brand before making a purchase.
While the Division Bench ultimately upheld the refusal of injunction, it offered significant observations on the limits of the “informed consumer” approach.
Reaffirmation of Traditional Confusion Principles
The Division Bench reiterated that the foundational principles governing trademark comparison remain unchanged. Courts must assess marks from the standpoint of an average purchaser with imperfect recollection, and the comparison must be made considering the overall impression of the marks rather than dissecting them into individual components.
The Court also revisited the distinction between trademark infringement and passing off, emphasizing that infringement actions rely primarily on the statutory rights flowing from registration, whereas passing off requires proof of goodwill, misrepresentation, and likelihood of damage.
Further, the Court reiterated two well-established doctrines in trademark law:
- the anti-dissection rule, requiring marks to be assessed as a whole; and
- the dominant feature test, which permits courts to consider the most distinctive element influencing consumer perception.
These principles continue to guide the determination of deceptive similarity even in modern commercial contexts.
The Court’s View on the “Informed Consumer” Concept
The most significant aspect of the judgment lies in the Court’s breakdown of the Single Judge’s reasoning regarding the behaviour of modern consumers.
The Division Bench clarified that the duration of consumer confusion is immaterial. Even momentary confusion caused by similarity between marks can satisfy the statutory requirement of likelihood of confusion under trademark law. The Court observed that if a consumer associates the impugned mark with the plaintiff’s mark, even briefly, the statutory protection of the trademark may be triggered.
In other words, the possibility that a consumer might later verify the brand or discover the difference does not negate infringement caused by initial interest confusion. The Court emphasized that initial confusion itself may constitute actionable harm, particularly where the similarity is sufficient to attract the consumer’s attention or divert them to the competing product.
This reasoning aligns with the doctrine of initial interest confusion, which recognizes that a junior user may unfairly benefit merely by attracting the attention of consumers who associate the mark with an established brand.
Why the Appeal Still Failed
Despite correcting the Single Judge’s articulation of the initial confusion test, the Division Bench ultimately declined to interfere with the refusal of interim injunction.
The Court found that, when the competing marks were assessed as composite marks, “FOREST ESSENTIALS” on one hand and “BABY FOREST” on the other, they were not deceptively similar at the interim stage. The word “FOREST,” being a dictionary term commonly used in the cosmetics and Ayurvedic sector, could not be monopolised in isolation without strong evidence of secondary meaning.
Additionally, the Court observed that the appellant’s mark was “FOREST ESSENTIALS” as a whole, and not the word “FOREST” alone. Accordingly, the anti-dissection rule weighed against isolating a single element of the mark to claim infringement.
The Division Bench also noted that questions regarding actual consumer confusion, such as emails, search engine results, and social media comments, were evidentiary matters better tested during trial rather than at the interlocutory stage.
Implications for Trademark Law
The judgment reinforces that traditional confusion principles remain robust, even in an era where consumers have unprecedented access to information and verification tools.
The decision cautions against over-reliance on the “informed consumer” narrative to dilute trademark protection. While modern consumers may conduct online research or compare brands, the law does not require trademark owners to tolerate even transient confusion created by similar marks.
The ruling also highlights that market sophistication does not automatically eliminate the risk of confusion. The focus continues to remain on whether the impugned mark is capable of creating an association with the earlier mark in the mind of an average consumer.
Correcting the Informed Consumer: the Court’s Reliance on Under Armour
The Division Bench also took note of the decision in Under Armour Inc v. Anish Agarwal, particularly to correct the Single Judge’s approach towards initial interest confusion. While the Single Judge had relied on Under Armour to suggest that an “informed consumer” may dispel confusion upon closer inspection, the Division Bench clarified that such an understanding was misplaced. Reproducing and endorsing the observations in Under Armour, the Court reaffirmed that the duration of confusion is immaterial, and even a brief or momentary association with the plaintiff’s mark is sufficient to satisfy the test of infringement. The Court emphasised that the relevant enquiry is whether a consumer, even at first glance, is led to associate the impugned mark with that of the plaintiff, and the possibility of subsequent verification does not negate such confusion. However, despite aligning with Under Armour on the legal standard, the Division Bench ultimately declined relief on facts, holding that the marks in question were not deceptively similar to trigger even this threshold of initial confusion.
Conclusion
The Division Bench decision thus strikes a careful balance. On the one hand, it acknowledges the realities of contemporary consumer behaviour in digital marketplaces. On the other, it reaffirms that the core objective of trademark law, preventing consumer confusion and protecting brand goodwill, cannot be undermined by assuming that consumers will always verify product origins.
The judgment therefore serves as an important reminder: even in an “informed society,” the law continues to protect against initial interest confusion.