Section 2 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
This last article on section 2 deals with the definition you meet most often in an examination report, "deceptively similar"; the clauses that the Tribunals Reforms Act, 2021 omitted or rewrote; and the three interpretation sub-sections, 2(2), 2(3) and 2(4). Earlier parts: mark and trade mark and goods, services and register.
A mark is deceptively similar to another if it so nearly resembles that other mark as to be likely to deceive or cause confusion (2(1)(h)). The Tribunals Reforms Act, 2021 omitted seven clauses tied to the Appellate Board and substituted the definition of "prescribed" (2(1)(s)). Sub-sections 2(2) to 2(4) say how references to trade mark, use of a mark, the Registrar, the Registry, associated goods and services, and "existing registered trade mark" are to be read.
"Deceptively similar" - clause (h)
The text reads: a mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion.
| Element | What the clause says |
|---|---|
| Comparison | One mark against another mark |
| Degree | "so nearly resembles" |
| Result | "likely to deceive or cause confusion" |
| Effect | The mark is deemed deceptively similar |
Three things to notice. First, the test is about likelihood, not proof that anyone was actually misled. Second, it is "deceive or cause confusion": either is enough. Third, the clause does not list factors such as sound, look or meaning; it states only the end result, and the Act uses the phrase in other provisions.
Where the phrase appears in the Act
"Deceptively similar" appears in the definition of false trade description (2(1)(i)(V)), in section 13 for names close to an international non-proprietary name, and in the association rules in section 16, which speak of marks so nearly resembling each other as to be likely to deceive or cause confusion. The related refusal ground, likelihood of confusion with an earlier mark, is in section 11. If an examiner has cited an earlier mark against you, see how to respond to a section 11 objection and our trademark objection reply service.
Example. An applicant files "Crunchyo" for namkeen and a registered mark "Crunchio" exists for similar snacks. The question under clause (h) is whether the later mark so nearly resembles the earlier one as to be likely to deceive or cause confusion. The clause does not itself say how to answer that; it sets the question.
What the Tribunals Reforms Act, 2021 changed in section 2(1)
Section 21 of the Tribunals Reforms Act, 2021 (Chapter XVI) abolished the Appellate Board's role in the Act. For section 2(1) it did two things:
- Omitted clauses (a), (d), (f), (k), (n), (ze) and (zf).
- Substituted clause (s), "prescribed".
Older printed copies of the Act still show these clauses, because they pre-date the 2021 Act. The omissions come from section 21 of the 2021 Act.
| Clause | Term as enacted | Position now |
|---|---|---|
| (a) | "Appellate Board" - the Appellate Board established under section 83 | Omitted in 2021 |
| (d) | "Bench" - a Bench of the Appellate Board | Omitted in 2021 |
| (f) | "Chairperson" - of the Appellate Board | Omitted in 2021 |
| (k) | "Judicial Member" - of the Appellate Board, including Chairperson and Vice-Chairperson | Omitted in 2021 |
| (n) | "Member" - a Judicial or Technical Member, including Chairperson and Vice-Chairperson | Omitted in 2021 |
| (ze) | "tribunal" - the Registrar or, as the case may be, the Appellate Board before which the proceeding is pending | Omitted in 2021 |
| (zf) | "Vice-Chairperson" - of the Appellate Board | Omitted in 2021 |
Before the Tribunals Reforms Act, 2021 these clauses defined the Appellate Board and its members. Sections that used the word "tribunal" now read "Registrar or the High Court, as the case may be"; for example section 10, which we cover in the article on colour limitation. The Board's chapter is covered later in this series.
Clause (zd) is left standing. Clause (zd), "Technical Member" (a Member who is not a Judicial Member), is in the Act as enacted, but the 2021 Act's list of omitted clauses does not include it. It therefore stays on the statute book, even though the "Member" clause (n) it depends on has gone.
"Prescribed" - clause (s), substituted
Before 2021 the clause read simply: prescribed by rules made under this Act. The 2021 Act substituted:
"(s) 'prescribed' means,- (i) in relation to proceedings before a High Court, prescribed by rules made by the High Court; and (ii) in other cases, prescribed by rules made under this Act;"
So for matters before the High Court the High Court's own rules apply; for everything else the Rules made under the Act apply, including the Trade Marks Rules, 2017.
Section 2(2): how references are read
Unless the context otherwise requires, any reference:
- (a) to "trade mark" includes "collective mark" or "certification trade mark";
- (b) to the use of a mark means use of printed or other visual representation of the mark;
- (c)(i) to use of a mark in relation to goods means use upon, or in any physical or other relation whatsoever to, the goods;
- (c)(ii) to use of a mark in relation to services means use as, or as part of, any statement about the availability, provision or performance of those services;
- (d) to the Registrar includes any officer discharging the Registrar's functions under section 3(2);
- (e) to the Trade Marks Registry includes any office of the Registry.
Clause (c)(ii) matters to service businesses: a mark is used for services when it is used as or as part of a statement about the availability or performance of the service, for example on a website or brochure offering it.
Section 2(3): associated goods and services
Goods and services are associated with each other if it is likely that those goods might be sold or otherwise traded in, and those services might be provided, by the same business, and so with descriptions of goods and descriptions of services. This test is used where the Act speaks of goods and services that are associated, such as the association rules in section 16.
Section 2(4): "existing registered trade mark"
For the purposes of the Act, "existing registered trade mark" means a trade mark registered under the Trade and Merchandise Marks Act, 1958 (43 of 1958) immediately before the commencement of this Act. For commencement see section 1.
Need help with an objection that cites a similar mark?
If the Registrar says your mark is too close to someone else's, the answer depends on how the two marks and their goods or services compare. Our trademark objection reply team can prepare the written reply and represent you at the hearing.
Key takeaways
- Deceptively similar = so nearly resembles another mark as to be likely to deceive or cause confusion (2(1)(h)).
- The test is likelihood, and deceive or confuse is enough.
- 2021 Act omitted clauses (a), (d), (f), (k), (n), (ze), (zf); "tribunal" is now read as "Registrar or the High Court, as the case may be" where sections have been amended.
- "Prescribed" now has two limbs: High Court rules for High Court proceedings, Rules under the Act otherwise.
- 2(2) to 2(4) fix how trade mark, use, Registrar, Registry, associated goods and existing registered marks are read.
- Clause (zd) "Technical Member" is not in the 2021 omission list, so it remains.
Read next
- Section 2: mark, trade mark and well-known trade mark
- Section 11: relative grounds for refusal of registration
- Section 9: absolute grounds for refusal of registration
- Trademark objection reply process
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.