You may confidently believe that the Monopoly man wears a monocle. That Pikachu has a black tip on its tail. Or that the infamous line from Snow White and the Seven Dwarfs is “Mirror, mirror on the wall”. None of these are true. Yet masses of people recollect them as true. This is called the Mandela effect in psychological terms; in Trade mark law, however, it’s often referred to as imperfect recollection.
The doctrine of imperfect recollection rests on similar premise, albeit with a diverse consequence. Consumers seldom remember a trade mark in its entirety, they remember its overall visual appeal or its most distinct features. Much like an individual may not remember a friend’s ten digit mobile number in its entirety but can instantly identify it from the first few digits, consumers rarely perceive a trade mark in its entirety.
Every generation has its own inventory of instantly recognizable brands. Some evoke luxury, others nostalgia, while a handful of marks embed themselves into the contemporary culture so much so that they no longer seem to be source identifiers. Consider Fruit Loops, most people can picture the brightly coloured cereal box with a picture of the toucan mascot and even the grocery store aisle where it usually sits, without even consciously reading the brand name. A consumer, however, rarely engages in through side-by-side comparison of a competing product. Rather, the consumer choice is guided by recollection rather than certitude, which is often inaccurate. It is this reality that the doctrine of imperfect recollection endeavors to address. Accordingly, the likelihood of confusion is not assessed by comparing two conflicting trade marks in a juxtaposition but by considering whether a consumer with average intelligence, relying solely upon imperfect recollection of one mark, would mistake it for another.,
The Halsbury’s Laws of India (Intellectual Property) encapsulates the doctrine of imperfect recollection through what it describes as the Test of a ‘common man’ which posits that, while determining the degree of similarity among two marks, they must be approached from the point of view of a man of average intelligence and of imperfect recollection. To such consumer, it is the
overall commercial impression created by the structural, phonetic and conceptual similarity among the marks that is likely to create confusion.
The jurisprudential foundations of this doctrine may be traced back to the English decision in Pianotist Co Ld’s Application where Lord Parker observed that “the two words must be judged by their look and the sound”. The inquiry does not end there, his lordship further emphasised that the comparison be undertaken even in context surrounding the mark, such as the application to goods, the nature and kind of customer who would be likely to purchase the said goods and the manner in which such goods would be ordinarily available in a marketplace. Having considered these factors, the conclusive question is whether the synchronous use of the marks is likely to cause confusion in the minds of the purchasing public, thereby leading to confusion as to the origin of the goods. If such a likelihood of confusion exists, the registration of the latter mark must be refused.
One of the earliest pronouncements on this doctrine in India is the decision of the Supreme Court in Amritdhara Pharmacy v Satya Deo, wherein the court, while examining competing marks “Amritdhara” and “Laxmandhara” observed that the phenomenon of consumer confusion is intrinsically incapable of being defined a priori. While in the case of Corn Products Refining Co. v. Shangrila Food Products Ltd. the Supreme Court held that the question of whether two competing marks are so similar to be likely to deceive or cause consumer confusion is a matter of first impression and it is for the Court to adjudicate upon. The question posed hereinabove has to be approached form the point of view of a man of average intelligence and imperfect recollection. Moreover, the Court emphasised that competing marks must be considered as a whole. It is the overall commercial impression conveyed by the marks, rather than the presence or absence of minor differentiating features, that determines the likelihood of confusion. An inconsequential point of difference, if scant to discern the marks in the mind of an ordinary customer, cannot dispel deceptive similarity.
Building upon the principles previously articulated in Amritdhara and Corn Products, the Hon’ble Supreme Court in Cadila Healthcare Ltd v Cadila Pharmaceuticals Limited. reiterated that the
likelihood of confusion must continue to be evaluated from the standpoint of a consumer of average intelligence and imperfect recollection. The Court thus, observed that due regard must be had to the ordinary errancy of human memory, as well as to imperfect pronunciation and speech, not only on the part of the consumer seeking to purchase the goods but equally on the part of the person supplying such goods. Recognizing that trademarks are often recalled imperfectly, the Court emphasized that the assessment of deceptive similarity must reflect the practical realities of the marketplace. The Hon’ble apex court further recognized that the complexities of likelihood of confusion possibly through imperfect recollection, particularly in the pharmaceutical sector, extend beyond the selective instances of consumer confusion. Courts have therefore consistently adopted an especially cautious approach where medicinal products are involved, recognizing that the cost of confusion extends far beyond commercial loss.
The contemporary marketplace has reinforced the relevance of the doctrine. Consumers now encounter trademarks through thumbnails, images, search engine results, sponsored advertisements and online marketplaces, where purchasing decisions are often made within seconds, without exercising the recommended degree of care or caution.
Which brings us back to where this article began. The opening paragraph made a passing reference to the familiar breakfast cereal “Fruit Loops.” It is unlikely that readers paused to question the spelling, after all, it appears perfectly ordinary. The mind recognizes the brand almost instantly and silently accepts what it expects to see. Except the trademark has never been Fruit Loops. It is, and always has been, Froot Loops.
If this distinction escaped your attention, it was not because the reference was subtle. It was because your recollection unfolded precisely as trade mark law has long anticipated. Rather than reading the mark letter by letter, you relied upon your recollection of the marks’ overall commercial impression. The unconventional spelling was inadvertently replaced with one that appeared linguistically correct, and the discrepancy passed unnoticed.
That fleeting moment encapsulates the Doctrine of Imperfect Recollection more effectively than any judicial definition. Consumers rely upon fragments of recollection; habits of recognition and impressions accumulated over time. The article, therefore, began not with an explanation of the doctrine, but with a demonstration of it. Before the law could teach the Doctrine of Imperfect Recollection, your own memory had already done so.
