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Article Published in the Express Magazine Dated
October 14,
2001
General Attorney : Rajiv K. Luthra
What are the factors that are taken into
consideration by the courts in order to determine
whether two trademarks are similar to each other?
Sneha Parasuraman, Trivandrum
It has been held by the Hon'ble Supreme Court that
each case depends on its own particular facts and
decided cases are useful only in laying down the
general principles. Further, it has held that the
true test is whether the totality of the
impression given both orally and visually is such
that it is likely to cause mistake, deception or
confusion. One trademark will be deceptively
similar to another if it so nearly resembles the
other as to be likely to deceive or cause
confusion. A trademark is likely to deceive or
cause confusion by its resemblance to another if
it is likely to do so in the course of its
legitimate use in a market where the two marks are
assumed to be introduced by traders in the market.
Two important questions are normally taken into
consideration to determine deceptive resemblance.
First, the persons whom the resemblance must be
likely to deceive or confuse, and second, the kind
of rules of comparison which are to be adopted in
judging whether such resemblance exists.
I am a Brahmin and got married six months back.
My wife is pregnant. Recently, I learnt of a
pre-marriage relationship that my wife had shared
with another man, which continued till the day of
our marriage or maybe even after. I have reason to
believe that the child is not mine. It is
impossible for me to survive in such a
relationship and I consider my marriage as void.
Please advice on how can I dissolve this marriage
in the fastest possible manner.
Guldip, Roorkie
Under the Hindu Marriage Act, 1955 (“Act”) a
marriage may be dissolved by a decree of nullity,
if the marriage is voidable according to Section
12 of the Act, or by a decree of divorce on the
grounds under Section 13 of the Act. Your marriage
may be dissolved by a decree of divorce on the
ground that your wife has, after the solemnisation
of the marriage, had voluntary sexual intercourse
with any person other than you. This, however,
will have to be proved by you. But in case of a
petition for divorce, Section 14 of the Act
provides that no petition for divorce shall be
entertained by the Court unless one year from the
date of marriage has elapsed. However, in
exceptional cases, a petition for divorce can be
filed even within one year of marriage. In such
cases, a separate application has to be filed by
the petitioner explaining the exceptional hardship
faced by the petitioner and seeking permission of
the Court to present the petition even before the
expiration of one year from the date of marriage.
However, adultery is not exceptional hardship per
se. But coupled with the consequences of adultery,
for example living with another man’s child, may
cause exceptional hardship under certain
circumstances to the other spouse. It would be the
discretion of the court to grant such permission.
Your marriage could be voidable and may be got
annulled by a decree of nullity on the ground that
your wife was pregnant by another man at the time
of your wedding. However, no petition for
annulling such a marriage shall be entertained
unless: the Court is satisfied that you were at
the time of marriage ignorant of the facts
alleged; proceedings have been instituted within
one year from the date of marriage, and that
marital intercourse with your consent has not
taken place since you discovered of your wife's
pre-married pregnancy. It is for you to satisfy
the Court beyond reasonable doubt that your wife
was pregnant by another man as the imputation of
unchastity is serious and a woman would be
condemned in society.
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