Trademark Infringement – Not the test of photogenic or perfect memory but of imperfect memory / recollection

  

Recently, the Hon’ble Delhi High Court in M/S ALLIED BLENDERS & DISTILLERS PVT. LTD. Vs SHREE NATH HERITAGE LIQUOR PVT. LTD.  has observed that in the cases alleging Trademark Infringement, it is not the test of photogenic or perfect memory but of imperfect memory / recollection which will determine likelihood of confusion. In this case, both the Plaintiff and Defendant are manufacturing and selling alcoholic beverages. The trademark of the Plaintiff is ‘Officer’s Choice’ and that of the Defendant is ‘Collector’s Choice’.

The Hon’ble Court, after an in-depth research on 'human memory' and 'trademark infringement', temporarily injuncted the Defendant from infringing the trademark of the Plaintiff pending final disposal of the suit. The relevant portion of the judgement is extracted herein under;

“15. It is well settled in the several dicta that the test is not of photogenic or perfect memory but of imperfect memory / recollection. The question which thus arises is, whether in such memory the whisky “Officer’s Choice” of the plaintiff is likely to be remembered as the “Collector’s Choice” whisky of the defendant.

16. Though on first blush the possibility of “Officer’s Choice” being confused / mixed up with “Collector’s Choice” appears remote but having recently read the book “Thinking, Fast and Slow” by Daniel Kahneman, a Professor of Psychology and a Nobel Laureate, on the subject of how the human mind thinks and how we make choices and in Chapter-4 titled “The Associative Machine” of which the learned author has dealt with ‘the association of ideas’ and on the basis of research conducted found that most of the work of associative thinking is silent, hidden from any conscious selves, I felt the need to foray into how memory works or is formed, particularly in relation to trade marks.

17. I may record that the plaintiff has proceeded on the premise that the word “Collector” in the defendant’s trade mark means and refers to the chief administrative and revenue officer of an Indian district and seen in which light the trade mark of the defendant conveys that the whisky of the defendant is the choice of such officer, even though the meaning of the word “Collector” in English language is “a person who collects things of a specified type” and who may or may not be a officer and seen in which light, the trade mark of the defendant can also be understood as conveying that the whisky of the defendant is the choice of a Collector of whiskies. The defendant has not only not controverted the said position. It is not the case of the defendant that the meaning or impression conveyed by its trade mark is of the product being a ‘Collector’s item’ or worth ‘collection’. Rather, the defendant, before the Registrar of Trade Marks, by citing examples of “Officer’s Choice” of the plaintiff as well as of “Minister” and in written statement, of “Masters Choice”, “Mayors Choice”, “Brigadiers Choice”, “Editors Choice”, “Doctors Choice” and “Queen’s Choice” etc. has reaffirmed that the reference in its trade mark to “Collector” is to the office of ‘District Collector’.

18. My research has revealed:

A. The International Journal of Research in Marketing 22 (2005) 27–44 in an article titled “Distinctive Brand Cues and Memory for Product Consumption Experiences” researching on consumer experiential learning from a memory perspective, referring to “brand image” as the role of brand names as cues that retrieve or signal product attributes, benefits, effect, or overall quality, reports (i) that the brand itself is not a memory target but a cue that might facilitate recall or inference of previously learned brand associations; (ii) although in most choice environments the brand cues, (name, logo, packaging, design etc.) are available and easy to discriminate perceptually, consumers still have to rely on memory to associate these brand cues with the results of prior learning of product quality; (iii) prior learning could have resulted in episodic memory traces of specific consumption experiences, but more likely in abstractions or summary evaluations, which are generally easier to remember than specific information; (iv) consumers need to recall exactly which prior experience went with each brand; (v) the consumers typically buy and consume products in a category sequentially, not simultaneously; (vi) memory for brand quality may be impeded by significant delays between consumption experiences and subsequent purchase occasions when retrieval is attempted; (vii) the result may be considerable confusion in memory between various brand experiences; (viii) it is likely that a brand name is not represented in memory by a single conceptual node but by multiple nodes, i.e., brand elements have distributed representations; (ix) the presence of any one of two similar brand cues in the choice environment will activate the common nodes – thus the presence of more common nodes will lead to more activation of consumption experiences that really belong to other brands causing confusion about memory targets even when there is no confusion or misidentification of the brands in question; (x) consumers’ memory representations of a brand typically include many associations such as semantic associations suggested by the brand name; (xi) example is given of consumption of one brand activating a particular meaning which becomes associated with that brand’s consumption experience and it is reported that if another brand activates overlapping semantic association, that will also become associated with the second brand’s experience leading to a consumer, though not confused about the identities of the two brands at the time of purchase being still confusing the specific consumption experiences that occurred with the two brands; (xii) similarity (versus distinctiveness) of brand cues might increase confusion in the recall of experiential targets, similarity in brand names and cues leads to overlapping associations and memory interference when consumers attempt to learn and remember quality differences; (xiii) that when products are purchased and consumed sequentially over an extended period of time, it becomes very difficult for consumers to learn and remember quality differences between well- established brands and lower-priced copycats; (xiv) similarity in brand name leads consumers to mistakenly think that they have had a satisfactory prior consumption experience with a copycat brand, when that particular experience may have actually occurred with the other brand which has been copied; and, (xv) consumer confusion may originate not at the level of misidentification of the brand per se, but at the level of confusing the experiences or benefits provided by each brand.

B. Another article titled “ The Influence of Brand Name’s Association Set Size and Word Frequency on Brand Memory” published in the Journal of Consumer Research Vol.-16, Issue-2, September 1989 reports (i) brand name memorability might be inhibited if the brand name is associated with a broad network of pre-existing concepts because the target name becomes lost in a sea of associated concepts that inhibit or interfere with its retrieval; (ii) due to the close semantic association between the concept “American” and “United States” , consumers exposed to an advertisement for American Airlines might attribute the advertisement to United Airlines; (iii) mounting theoretical and empirical evidence suggests that the probability of retrieving any particular concept diminishes as the association set size of the concept increases; and, (iv) high frequency words can be processed readily with little effort and therefore receive limited processing time, suggesting relatively nondistinctive processing during encoding i.e. little effort is made to integrate, specify or restrict the brand information; upon exposure to such words, a broad spectrum of the heterogeneous concepts comprising the association set will be activated and unselectively encoded in memory together with the brand word; in turn these diverse concepts of the association set, which later may be used as retrieval cues, are likely to cue retrieval of concepts unrelated to the brand name, interfering with brand name retrieval – thus when brand names consist of high frequency words, memory for brand information may be poorer for those brands with a large rather than a small association set.

C. Yet another article titled “The Relation between Positive Brand Emotions and Recall” published in Online Journal of Communication and Media Technologies (Volume: 4 – Issue: 1 – January 2014) dealing with advertisement memory and emotions to brands describes (i) brand memory and advertisement memory is a kind of mental storage that consumers apply to while making decisions about brands and buying; (ii) ‘recall’ is physiological factor that plays key role in human life related to every thing and is a human internal process and reports that the historical knowledge and experiences have significant impacts on current thinking; (iii) recall has start up function for customer behavior and decision process; (iv) newly learnt thing is integrated with old knowledge and thus recall of a newly learnt thing is always associated with old knowledge; and (v) the advertisement and other communication applications create recall networks.

D. Another article titled “Conceptualizing and Measuring Brand Salience” published in 2004 in Volume 4(4): 327–342 of Marketing Theory Journal reports (i) that since the 1980’s, theories of how humans encode, store and retrieve information have permeated marketing thought and theory development; (ii) one of the theories most widely adopted into marketing is that of the Associative Network Theories of memory; (iii) under this theory memory consists of nodes that hold information/concepts; if two pieces of information are ‘associated’, connections are conceptualized as existing between them, making up a network of associated information; (iv) when a customer is exposed to the brand in a specific context, links in memory between the brand name and specific concepts can be created or reinforced; this network of information linked to the brand name constitutes what has been referred to as the brand’s image or as brand knowledge; these linked concepts can be retrieved when the brand name is used as the retrieval cue and /or cues to retrieve the brand name when stimulated in a buying condition; (v) just because the brand is known or recognized as a member of the category does not mean it will come to mind in buying situations, as retrieval is dependent on the cue and the accessibility of the linked information; (vi) any brand name association can potentially act as a cue for accessing the brand name; (vii) the impact of cues on retrieval is largely subconscious and often unnoticed by buyers; (viii) the importance buyers place on brand choice is typically low and therefore there is little motivation to go beyond the easily accessible on any one occasion; (ix) these factors combine with the influence of other brands to influence retrieval of any specific item and this makes retrieval from memory a highly variable and unpredictable outcome at any one occasion.

E. Yet another article titled “Branding the Brain: A Critical Review and Outlook” published in the Journal of Consumer Psychology (2012) also under the head of “Remembered Value and Learning” opines (i) Remembered Value Refers to how different brand associations are encoded, consolidated, and retrieved in the consumer's memory - parts of these processes happen on an unconscious level; (ii) remembered value consists of explicit memory and implicit memory of prior consumption experience; and, (iii) the retrieval stage is an active and dynamic relearning process rather than the mere replay of previously acquired information.

19. The aforesaid research leads me to prima facie conclude that the customer’s / consumer’s memory is likely to mix “Officer” with “Collector”, the possibility of trademark “Officer’s Choice” of the plaintiff being remembered / recalled as “Collector’s Choice” cannot be ruled out. A Collector is the highest point of officialdom / authority in a district and with whom nearly every citizen of that district comes in contact with or knows of. The Collector is often referred to as ‘Bada Afsar’ of the district. For a resident of a district who may not in his entire life time be stepping out of that district (and of which there is a large number), the Collector is the only officer and to them the other authorities in the country hold no meaning. I am reminded of the often quoted anecdote of the foster mother in village of the first President of India Babu Rajendra Prasad, upon being informed of his becoming a high Government official, blessing him to be promoted as the Collector, which as aforesaid is the highest post of authority in a village.”