The Telangana High Court’s recent observations in Sai Silks v. SKP B Gopinath have questioned whether the traditional standard of a consumer with “average intelligence and imperfect recollection” remains relevant in contemporary trademark disputes, and whether it is due for a revision. But does greater consumer awareness justify replacing this standard, or does it risk shifting the burden of avoiding confusion from traders to consumers? Adyasha Syam examines the judgment’s doctrinal inconsistencies and considers whether the existing test needs reform or simply a more context-specific application. Adyasha is a third-year law student at National Law University Delhi, with a keen interest in intellectual property rights, international criminal law, and alternative dispute resolution.
H/t to Mr. S.Srikanthan for sharing this development with us.
The Consumer Standard of Deceptive Similarity: Questions Unanswered by the Sai Silks Judgement
By Adyasha Syam
The core principle of trademark law is to ensure that goods and services remain distinct and easily distinguishable for their consumers. The purpose of a trademark as an identifier is thus defeated if a deceptively similar mark exists, such that it is likely to deceive or cause confusion for consumers. For the past decades, Indian courts have consistently determined the standard of deceptive similarity from the perspective of a person of average intelligence and imperfect recollection (see here, here and here). However, in a September 8 order passed in M/s Sai Silks (Kalamandir) Ltd. v. SKP B Gopinath Pvt. Ltd., a Division Bench of the Telangana High Court stated that this standard “no longer serves the present society”. While dismissing an appeal against the refusal of interim relief, a Division Bench suggested that the traditional test of a person of average intelligence and imperfect recollection should give way to a “perceptive consumer with informed associations”.
The Telangana High Court’s new direction raises eyebrows in the context of the Supreme Court’s judgement in Pernod Ricard India Pvt. Ltd. v. Karanveer Singh Chhabra, which had reaffirmed the relevance of imperfect recollection while recognising the importance of consumer attentiveness just a year earlier. The significance of Sai Silks, however, extends beyond the possibility of a potential new standard. The judgment raises the larger question of whether expecting better awareness and familiarity with brands risks shifting the burden of avoiding confusion from traders to consumers. This post highlights the doctrinal inconsistencies and internal contradictions in trademark law brought on by the judgment’s broad recommendation, and thus advocates for a context-specific application of the same.
The Sai Silks Order
The dispute in the case of Sai Silks concerned SKP B Gopinath Pvt. Ltd.’s use of “Kanchipuram Varahi Lakshmi Silks” as marks, which Sai Silks (Kalamandir) Ltd. alleged were phonetically, visually and structurally similar to its own registered marks, including “Kancheepuram Vara Mahalakshmi Silks”. However, the Court considered “Kancheepuram” and “Silks” common to the trade and treated “Vara Mahalakshmi” as non-distinctive. It also found substantial visual differences between the competing labels, concluding that the appellant had no single dominant or essential feature capable of distinguishing its mark.
Turning next to the consumer base, the Court observed that saree-shopping was a planned and leisurely activity not undertaken randomly. Thus, consumers were expected to be conscious of their chosen outlets, and mere phonetic similarity could not independently establish confusion. In an age of constant exposure to print, digital and social media promotions, the Court stated that consumers should be presumed to possess greater awareness of brands and their sources. Thus, the original test of a person of average intelligence and imperfect recollection should make way for a perceptive consumer with informed associations, aware of the source, brand, quality, and comfort of the purchase. This shift in attention, from the context-specific observation about saree purchases, to a broader comment on the tests of deceptive similarity, must be analysed in greater detail than the few lines spared in the original judgement.
The Original Standard of an Average Consumer
Section 2(1)(h) of the Trade Marks Act, 1999 provides that a mark is deceptively similar to another if it “so nearly resembles that other mark as to be likely to deceive or cause confusion.” The traditional Indian standard, developed in Corn Products Refining Co. v. Shangrila Food Products Ltd. (Supreme Court; 1959) and Amritdhara Pharmacy v. Satya Deo Gupta (Supreme Court; 1962), checks whether a person of average intelligence and imperfect recollection is likely to be confused by competing marks. This test does not assume that consumers are incapable of making informed decisions, but instead recognises a basic feature of commercial behaviour: that consumers rarely encounter competing marks simultaneously and must often rely on an imperfect impression of what they have encountered before.
Moreover, this standard is not as inflexible as the critique in Sai Silks might suggest. In discussing the average consumer in Pernod Ricard, the Court drew upon the European formulation of a reasonably well-informed, observant and circumspect consumer, while retaining the principle of imperfect recollection. It also recognised that consumer attentiveness varies according to the nature of the goods. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., the Supreme Court identified several relevant considerations such as the nature of the marks, the class of purchasers, the nature of the goods and the mode of purchase, making the degree of consumer attention dependent on the circumstances of the transaction. For example, a person purchasing an expensive saree would in most cases exercise greater care than someone buying an everyday household product. Pharmaceutical products, on the other hand, call for extra caution because confusion can have serious consequences.
The problem with the Sai Silks critique is therefore not its recognition that consumers may exercise different degrees of attention, because such flexibility has already been incorporated by the judiciary into the existing standard. Its loophole lies in the broader proposition that increased exposure to advertising and promotion renders the traditional standard obsolete. Excess exposure to brands by itself does not necessarily translate into the ability to distinguish between similar marks, without considering the intricacies of both the mark and the product. Instead, repeated exposure to commercial promotions may actually induce familiarity with the product without an ability to identify the source.
Shifting the Burden on Consumers
The goal of trademark law cannot simply be to reward consumers who make careful purchasing decisions. Its purpose is to prevent traders from appropriating the goodwill of others through misleading indications of commercial origin, which the proposed Sai Silks standard would not be able to fulfil. If consumers are presumed to recognise differences that may not be apparent from an imperfect recollection, it may be harder to establish infringement, particularly where the competing marks share phonetic or conceptual similarities but differ in their visual presentation.
This problem will be especially acute in digital marketplaces, where consumers become aware of trademarks through search results, social media advertisements, influencer promotions, etc. Since such encounters are often brief and separate from the physical context in which a product is ultimately purchased, greater access and exposure would not necessarily translate into greater attention to a mark. A consumer who recognises a familiar name while scrolling may still be misled about the commercial source of the product. Thus, the inquiry cannot ignore the circumstances in which the mark is encountered.
The Broader Judicial Takeaway
Even if its intuitive criticisms and implications were put aside, the fact remains that Sai Silks does not take into Pernod Ricard, which on 14 August 2025 expressly reaffirmed the average consumer standard and imperfect recollection. A High Court cannot displace the law declared by the Supreme Court under Article 141 of the Constitution.
To reconcile this contradiction, Sai Silks need not necessarily be read as laying down an entirely new test. Paragraph 27 of the judgement confines its reasoning to the particular purchasing circumstances of sarees, while the very next paragraph makes the broader observation about contemporary consumer behaviour. The judgment can be read as a suggestion to apply the existing standard contextually, rather than as an instruction to replace it altogether. Consumer attention should remain a relevant factor, within the broader nuanced perspective of imperfect recollection. The judgement should not allow trademark law to burden consumers for traders adopting confusingly similar marks, especially since the entire purpose of marks is to act as indicators of commercial origin.
