LEGAL PRINCIPLE: INTELLECTUAL PROPERTY LAW — Trade Marks — Test for Comparison of Conflicting Marks
PRINCIPLE STATEMENT
The question is not whether a person looking at two trade marks side by side would see a possibility of confusion; the question is whether a person who sees the proposed trade mark in the absence of the other trade mark, and with only a general recollection of the other trade mark, would be liable to be deceived into thinking the trade mark before him is the same as the other.
RATIO DECIDENDI (SOURCE)
Per Tobi, JSC, in Ferodo Limited & Anor v. Ibeto Industries Limited (2004) NLC-951999(SC) at p. 50; Paras B–D.
"The question is not whether if a person is looking at two trade marks side by side there would be a possibility of confusion; the question is whether the person who sees the proposed trade mark in the absence of the other trade mark, and in view only of his general recollection of what the nature of the other trade mark was, would be liable to be deceived and to think that the trade mark before him is the same as the other, of which he has a general recollection."
EXPLANATION / SCOPE
The correct test for confusing similarity is not side-by-side comparison but imperfect recollection. The court must consider whether an ordinary purchaser with a general, imperfect recollection of the registered mark would be deceived into thinking the defendant’s mark is the same. Side-by-side comparison is too strict because consumers do not carry both marks simultaneously in memory. This serves protecting marks against confusion in real-world conditions. The court cannot require exact duplication or side-by-side identity before finding infringement.