In an evolving marketplace where brand identity is pivotal to consumer trust and commercial success, the protection of trademarks has become more critical than ever. The case of Under Armour Inc. v. Aero Armour & Ors.[1], decided by the Division Bench of the Delhi High Court on 23 May 2025, presents a significant examination of trademark law in India. It not only brings into focus the legal standards applied to determine infringement but also explores the boundaries of protection for globally recognized brands under Indian law. This case serves as a touchstone for understanding how Indian courts interpret key concepts such as deceptive similarity, initial interest confusion, and the legal weight of dominant elements within composite marks.
Introduction
In the case of Under Armour Inc. v. Aero Armour & Ors., the Division Bench (two-judge Bench) of the Delhi High Court overturned a Single Judge’s decision that declined interim relief to the Appellant/Plaintiff, and addresses critical questions surrounding trademark infringement and the scope of brand protection under the Trade Marks Act, 1999.
At the heart of the dispute lies a conflict between Under Armour Inc., a globally recognized U.S.-based sportswear brand, and the Respondents, who marketed clothing under the name ‘Aero Armour’. The case stems from an appeal filed by Under Armour challenging a Single Judge’s refusal to grant an interim injunction against the Respondents’ use of the allegedly infringing mark, albeit, placing certain specified limitations on the Respondent/Defendant.
The central legal issues revolve around the concepts of deceptive similarity, initial interest confusion, and the potential dilution of a well-established trademark. This decision is significant in reinforcing the principles governing composite marks, the relevance of dominant elements in trademark comparison, and the level of protection afforded to strong, well-known brands when facing potentially misleading or opportunistic market entrants.
The legal foundation of the ruling: Section 29 of the Trade Marks Act
The Court’s decision was largely based on Sections 29(1), 29(2), and 29(4) of the Trade Marks Act, 1999. These sections confirm that using a similar or identical mark without permission constitutes trademark infringement, that even pre-purchase confusion is enough to prove infringement, and that well-known brands receive stronger legal protection. The order specifically upheld ‘initial interest confusion’, where a consumer is drawn to an infringing mark before buying, as a valid basis for infringement.
These provisions collectively assert that unauthorized use of an identical or deceptively similar mark constitutes infringement, that the likelihood of confusion (even at a pre-purchase stage) is sufficient to establish such infringement, and that well-known marks are afforded enhanced protection. The order particularly emphasized the concept of ‘initial interest confusion’, affirming that if a consumer's attention is initially captured by an infringing mark due to its similarity, even if they later realize the distinction, it satisfies the test for trademark infringement under Indian law, especially for strong, established brands like Under Armour.
Section 29(1) broadly states that a registered trademark is infringed when someone, without authorization, uses a mark identical or deceptively similar to it in the course of trade, in relation to goods or services for which the trademark is registered. This provision lays the foundational principle that unauthorized use of a confusingly similar mark for similar goods or services constitutes infringement.
Section 29(2) elaborates on the likelihood of confusion, stipulating that a registered trademark is infringed if an unauthorized mark, due to its identity or similarity with the registered mark and the identity or similarity of the goods or services, is likely to cause confusion on the part of the public, or is likely to have an association with the registered trademark. Crucially, the order in Under Armour affirmed that this likelihood of confusion can exist even at a pre-purchase stage, introducing and reinforcing the concept of ‘initial interest confusion’. This means that if a consumer's attention is captured by an infringing mark and they are initially led to believe there's a connection to the original brand, even if they later realize the distinction before purchase, it can still be considered infringement.
Furthermore, Section 29(4) extends protection to well-known marks, even if the infringing mark is used for goods or services that are not similar to those for which the trademark is registered. This subsection is particularly relevant for brands with a strong reputation, as it protects against dilution and unfair advantage. It essentially prevents others from ‘riding on the coattails’ of a famous brand’s established goodwill and reputation, even in unrelated product categories, if such use is detrimental to the distinctive character or repute of the registered trademark or takes unfair advantage of it. The Under Armour order emphasized that even a brief consumer misdirection, such as clicking a link under mistaken assumptions due to a perceived association with a premium brand, can damage the original brand's market position, falling within the purview of these protective provisions.
Brief background and facts
Under Armour Inc., the Appellant in this case, is a globally recognized U.S.-based sportswear and accessories brand founded in 1996 by Kevin Plank, with trademark registrations and brand presence extending across multiple jurisdictions, including India. Anish Agarwal and another, the Respondents, on the other hand, are engaged in the manufacture and distribution of clothing under the trademark ‘Aero Armour’ and ‘ARMR’.
A Single Judge of the Delhi High Court earlier ruled against Under Armour’s request for an interim injunction to restrain the Respondents from using the allegedly infringing mark. Applying the Global Appreciation Test, the Court concluded that there was no deceptive similarity or likelihood of confusion between the two marks, particularly in the light of the differing commercial features and unique selling points of the respective brands.
Challenging this decision, the Appellants filed an appeal and the Division Bench reversed the Single Judge’s decision. Central to their argument was the concept of ‘Initial Interest Confusion’ the idea that even if consumers are briefly misled into associating Aero Armour with Under Armour, such momentary confusion is sufficient to constitute trademark infringement. The Appellants contended that this initial association allows the Respondents to unfairly benefit from the established goodwill and market recognition of the Under Armour brand, thereby creating an uneven playing field in the competitive sportswear market.
Questions of law for determination
- Trademark Infringement: Whether the Respondent infringed the registered trademarks of the Appellant.
- Initial Interest Confusion: Whether initial interest confusion where consumers are momentarily misled is sufficient to establish trademark infringement.
- Likelihood of Confusion: Whether there exists any likelihood of confusion or deceptive similarity between the Appellant’s and Respondent’s marks.
Appellant’s contention
The Appellant argued that the Respondents’ marks closely resembled their ‘Under Armour’ trademark in structure, font, and overall presentation, creating a deceptive similarity likely to confuse the average consumer. They contended that the use of the mark ‘AERO ARMR’ was a deliberate attempt to exploit the goodwill and reputation of the Under Armour brand, amounting to passing off. Furthermore, the continued use of such marks risked diluting the brand’s distinctiveness, especially as the respondents’ products were sold at significantly lower prices, potentially misleading consumers and undermining the premium image of the appellant’s brand.
Respondents’ contention
The Respondents contended that the Appellant cannot claim exclusive rights over the word ‘Armour’, which is commonly used in trademarks across various industries. Once ‘Armour’ is excluded, the remaining elements ‘Under’ and ‘Aero’ bear no visual or phonetic similarity, eliminating any likelihood of confusion. They further argued that their branding draws inspiration from military themes, distinct from the appellant’s sports-focused identity, and is targeted at a different consumer base. Highlighting their intent, the respondents explained that the name ‘Aero Armour’ was chosen based on personal and thematic relevance, without dishonest motive. Their logo and design elements, emphasizing military aesthetics, further differentiate their mark from that of the appellant.
Decision of the Court
The Division Bench, after reviewing both sides’ arguments, determined that the Single Judge misapplied the initial interest confusion test. They clarified that even a brief association of the Respondent's marks with Under Armour's marks by a customer constitutes trademark infringement. The court also found that the Single Judge incorrectly used the anti-dissection rule by isolating the word ‘ARMOUR’ instead of comparing the marks in their entirety. Furthermore, the Bench dismissed the Respondent's attempt to distinguish between casual wear and sportswear, recognizing that the goods were, in fact, identical. Consequently, the Division Bench overturned the Single Judge's decision, finding it to be without merit.
Law settled in the case
In this case, the Court clarified several key aspects of trademark law. It established that initial interest confusion is sufficient for infringement under Section 29 of the Trade Marks Act, 1999, meaning even momentary consumer association with a registered mark is enough. The Court reiterated that the likelihood of confusion is judged from the perspective of an average, imperfectly recollecting consumer. Dishonest adoption of similar marks, especially those mimicking well-known brands, warrants an injunction. The degree of protection for a trademark is directly proportional to its strength, requiring new entrants to maintain greater distance from strong marks. While acknowledging the non-dissection rule and global appreciation test, the court found the initial assessment of no confusion erroneous due to strong phonetic and visual similarities and similar trade channels. Finally, it clarified that consumer sophistication does not negate infringement, as even informed consumers can experience initial confusion, particularly in dynamic market environments.
The Ruling’s main tenets:
- Initial Interest Confusion: Brief consumer confusion linking a mark to a registered trademark is infringement under Section 29, Trade Marks Act, 1999.
- Likelihood of Confusion: Infringement is assessed by whether an average consumer would briefly associate the challenged mark with the registered one.
- Dishonest Adoption: Adopting a mark deceptively similar to a well-known trademark, particularly dishonestly, merits an injunction.
- Protection for Strong Marks: Well-known trademarks receive greater protection, requiring new marks to be significantly distinct.
- Non-Dissection Rule & Global Appreciation: Courts evaluate overall phonetic and visual similarity, trade channels, and product placement, not just isolated elements, to determine confusion.
- Consumer Sophistication: Even informed consumers can experience initial confusion due to modern market trends, which doesn't negate infringement.
Analysis
This case addresses the nuanced contours of trademark infringement, specifically examining the doctrine of initial interest confusion and its relevance in contemporary consumer environments. At issue was whether the Respondent’s marks ‘Aero Armour’ and ‘Aero ARMR’ created a likelihood of confusion with Under Armour’s registered trademarks. The Division Bench of the Delhi High Court held that confusion need not be confined to the point of purchase, even momentary misdirection or mistaken association in the early stages of consumer engagement can constitute infringement.
This Division Bench order rejected the Single Judge’s assumption that modern consumers would discern brand distinctions and appropriately integrates behavioral insights, recognizing that consumers often form impressions within milliseconds,[2] and that these impressions are shaped by cognitive biases,[3] online algorithms, and rapid digital interactions.[4] The Court held that initial confusion, such as clicking a link under mistaken assumptions, harms a brand’s market position by creating an unfair association. The Court acknowledged that consumers typically do not dissect trademarks analytically but rather rely on overall commercial impressions. The use of the dominant term ‘Armour’, combined with the phonetic similarity of ‘ARMR’, supports a finding of deceptive similarity, especially when these products are sold under the same class (Class 25) on similar e-commerce platforms like Amazon and Myntra.
The case also demonstrates the vulnerability of strong marks with established goodwill.[5] Even absent direct confusion, the perception of association, however brief, can erode brand distinctiveness and amount to unfair advantage. The Respondents’ arguments based on thematic distinctions, such as military imagery or the prefix ‘Aero’, were found irrelevant, as they failed to negate the dominant consumer impression. The order applies a global assessment of similarity,[6] taking into account visual, phonetic, and conceptual elements, reinforcing the principle that brand protection must evolve in response to digital marketing and real-world consumer behaviour.
Conclusion
The Delhi High Court’s ruling in this case marks a pivotal moment in Indian trademark jurisprudence, affirming that even initial consumer confusion, however momentary, is sufficient to establish infringement, particularly when strong marks are involved. The recognition of the doctrine of initial interest confusion[7] brings Indian law in alignment with international standards and better reflects the realities of digital consumer behaviour.
By dissecting composite trademarks and emphasizing dominant mark components, the Court has strengthened the legal safeguards for reputed brands against dilution and misappropriation. The ruling sends a clear signal that imitation, whether phonetic, visual, or thematic, will not be tolerated when it exploits the goodwill of established trademarks. This precedent is valuable not just for trademark proprietors but also for legal practitioners and entrepreneurs, urging greater caution in brand development and stronger vigilance in protecting brand equity. It underscores a progressive shift in Indian trademark law, toward more robust, behaviorally attuned protection for intellectual property in an algorithm-driven economy.
[The authors are Associates in IPR practice at Lakshmikumaran & Sridharan Attorneys]
[1] Under Armour Inc. v Anish Agarwal & Anr. (23.05.2025 - DELHC): 2025:DHC:4243-DB; FAO(OS) (COMM)-174/2024
[2] Gitte Lindgaard et al., Attention Web Designers: You Have 50 Milliseconds to Make a
Good First Impression! 25 BEHAV. & INFO. TECH. 115, 115 (2006)
[3] Michael Hopkin, Web Users Judge Sites in the Blink of an Eye, NATURE NEWS, Jan. 13,
2006, http://www.nature.com/news/2006/060109/full/060109-13.html
[4] Jacoby, J., Speller, D. E., & Berning, C. K. (1974). Brand Choice Behavior as a Function of Information Load: Replication and Extension. Journal of Consumer Research, 1(1), 33–42. http://www.jstor.org/stable/2488952
[5] Hamdard National Foundation (India) and Another v. Sadar Laboratories Pvt. Ltd., 2022 SCC OnLine Del 4523
[6] Adidas-Salomon AG v. Fitnessworld Trading Ltd., Case C-408/01, [2003] ECR I-12537
[7] First used in U.S. case of Grotrian Steinway & Sons 365 F. Supp. 707 (1973); later used in Google LLC v. DRS Logistics Ltd., 2023 SCC OnLine Del 4809
