Mansi Misra & Anand Kumar
INTRODUCTION
Traditionally, trademark infringement has been assessed through the lens of confusion occurring at the point-of-sale, with courts examining whether actual purchasers are likely to be misled at the moment of making their decision to purchase. In other words, confusion, as originally understood, was meant to include consumers who were confused as to the source of a good at the “point-of-sale”. However, within common law jurisdictions, courts now recognise that confusion does not inevitably disappear once a sale is completed. Rather, it may arise or persist throughout the entire lifecycle of a product and may affect not only purchasers but also those who observe the product in use. This means trademark’s doctrine of consumer confusion has evolved to include a liability theory known as “post-sale confusion”. The theory of post-sale confusion does not focus on the potential confusion of a purchasing customer at the point of sale, rather it aims to prevent confusion by third-party observers of the product bearing a confusing trademark[1].
In India, the courts have recognized confusion, including “point-of-sale confusion”, “initial-interest confusion”, and “reverse confusion” in the context of trademark infringement. While most trademark infringement cases in India deal with confusion at the point-of-sale and initial interest at the consumers’/purchasers’ end, the post-sale confusion, which “includes confusion of those other than the purchaser,” needs a distinct recognition within the broader framework of “likelihood of confusion”.
“Initial interest confusion” refers to a situation where a consumer’s attention is captured at a preliminary stage prior to making a purchase due to similarity between competing marks, a concept increasingly seen in online spaces such as confusing domain names, ad-words, search results, etc. Even if a consumer ultimately realises the difference between the competing marks at the “point-of-sale” and is not confused, the doctrine considers and recognises that the junior user may have already gained an unfair advantage by diverting consumer attention or leveraging the original proprietor’s prior mark and their goodwill[2]’[3]. “Reverse confusion” operates at the opposite end of the spectrum, and it arises when a larger and more powerful junior user adopts a mark similar to a smaller but senior user, resulting in the latter’s identity being overshadowed in the marketplace. Put simply, the junior user’s market dominance overwhelms the senior user’s, and in such cases, consumers may come to believe that the senior user’s goods or services are associated with, or originate from, the junior user. This doctrine has found recognition in Indian jurisprudence in Allianz Aktiengesellschaft Holding v. Allianz Capital and Management Services Ltd. [4] and AZ Tech (India) v. Intex Technologies (India) Ltd.[5], particularly in scenarios where disparities in market power manipulate consumer perception.
The concept and doctrine of post-sale confusion have not received much recognition by the Indian court until recently. In Shree Nath Heritage Liquor Pvt. Ltd. & Ors. v. Allied Blenders & Distillers Pvt. Ltd., the court simply referred to the “post-sale confusion” as a distinct category within the broader framework of “likelihood of confusion”. Recently, the Supreme Court’s observations in Pernod Ricard India Private Limited & Another v. Karanveer Singh Chhabra[6] (“Pernod Ricard”), in light of the evolution of doctrine in the UK and the USA, has brought the doctrine into sharper focus, making this an apt moment to examine its implications.
POSITION IN THE EU AND THE UK
The principle of post-sale confusion entered European trademark jurisprudence through the CJEU’s decision in Arsenal Football Club Plc v. Reed[7]. Mr. Reed was selling unauthorised Arsenal merchandise and had displayed a notice on his stall stating that his goods were unofficial. The CJEU held that the notice was of no consequence because consumers encountering the goods after their purchase could still believe them to originate from Arsenal. The court held that the use of a sign which was identical to the trademark of the original proprietor, i.e., Arsenal, was liable to jeopardise the guarantee of origin, which constituted the essential function of the trademark. The court noted that there was also no guarantee that all the goods designated by the trademark had been manufactured or supplied under the control of a single undertaking that was responsible for their quality. This marked the first clear recognition that post-sale confusion, at the end of observers rather than purchasers, could fall within the scope of infringement.
In Montres Breguet SA v Samsung Electronics Co Ltd, the UK court made an important observation in the context of post-sale confusion, noting that a trademark may continue to function as an indicator of origin even if the same was not relied upon, or was not visible, at the point of sale. The court highlighted the practical and commercial realities in the marketplace settings, where the trademarks might not always be visible to the consumer at the point of sale. The fact that consumers are often influenced by products encountered in social settings, as it is a very old human trait to wish to acquire a product that one has seen worn by a friend or acquaintance or in their home, makes the discussion of post-sale confusion more relevant for the assessment of infringement claims. Further, the goods may be consumed or used by persons other than those who purchased them. Accordingly, trademarks can give rise to confusion even in the post-sale context.
Relying on the CJEU’s decision in Arsenal Football, the UK Court in the Datacard Corp. v. Eagle Techs. Ltd.[8], described the post-sale confusion as “confusion on the part of the public as to the trade origin of goods or services in relation to which the impugned sign has been used, which only arises after the goods or services have been purchased”.
Built on this foundation, the UK Supreme Court’s decision in Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc and Anr.[9], overturning the decision of the Court of Appeals, now serves as the leading precedent on post-sale confusion in trademark jurisprudence. In this case, the respondent was the registered proprietor and user of the trademark 
(UMBRO Sign) in respect of class 25 goods, and the appellant used the trademark 
(“Dream Pairs sign”) in respect of identical goods (i.e., footwear) in the course of trade without the consent of the respondent, Iconix. One of the important issues before the UK SC inter alia was “whether confusion arising outside the transactional context and/or by someone other than the potential purchaser” falls within the scope of Section 10(2) of the United Kingdom’s Trademark Act 1994 (“UK TM Act”). On the aspect of post-sale confusion, Dream Pairs, the appellant, while acknowledging the relevance of post-sale confusion in the context of trademark infringement, argued on a limited ground that infringement could only be established if post-sale confusion affected the origin function at the point of a subsequent sale or in a subsequent transactional context. In other words, Dream Pairs attempted to contend that for post-sale confusion to amount to actionable infringement, it must influence consumers when they make a choice with respect to the goods or services in question, resulting in damage, lost sale, diversion of consumers, etc., at the point of a subsequent sale or in a subsequent transactional context. In this articulation, Dream Pairs defined damage as being an actual impact on the choice of goods or services arising because of confusion affecting or jeopardising the essential function.
While rejecting Dream Pairs’ arguments, the UK Supreme Court (“UKSC”) held that the absence of a likelihood of confusion at the point of sale is not a condition precedent for returning the finding on the question of infringement. The Court further clarified that post-sale confusion may, in appropriate circumstances, constitute infringement, even where there is no demonstrable damage to the essential origin function of the trademark at the point of a subsequent sale or in a subsequent transactional context.
The UKSC reached this conclusion based on the reasons summarised below:
- A trademark continues to serve its origin-indicating function even after the point of sale, and therefore, confusion arising in the post-sale context can, in appropriate cases, amount to infringement. Importantly, such confusion is not confined to perceptions arising at the point of a subsequent sale or transactional interaction. In simple words, the likelihood of confusion is not confined to the point of sale, and the same may also arise when consumers encounter the product in use post-sale.
- The assessment of the likelihood of confusion is undertaken from the perspective of “the public” at large, and not merely “the purchasing public”. This means the likelihood of confusion is tested in the context of “… the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings ….”(Emphasis added.)
- The exclusive rights conferred by trademark law are intended to protect the core function of a mark and the specific interest of the proprietor, namely, its ability to guarantee origin. This means once confusion as to origin arises in the mind of the consumer, the harm is caused, and the infringement is established. While other damage may arise from the confusion as to the origin (for example, direct damage to the proprietor’s economic interests through lost sales), no such further damage is required to be proved for the infringement to culminate.
POSITION IN INDIA
Recently, in the Pernod Ricard case, the Supreme Court of India (“Supreme Court”), while discussing the doctrine of post-sale confusion, relied on the UKSC decision in Iconix, and observed that the notion of post-sale confusion, though well recognized in jurisdictions like the United States and now the UK, was still relatively novel within Indian trademark law. The underlying harm in post-sale confusion lies in the deceptive appearance of legitimacy, which can impair the distinctiveness and perceived exclusivity of the genuine product.
While the Supreme Court agreed with the principle of post-sale confusion as an acceptable and significant doctrine of confusion and infringement in the trademark, it held that the said principle was not directly applicable to the facts of case, as the goods in question (i.e., liquor) were not intended for public display and were for private consumption. The issue remains open for more comprehensive analysis in a future case where such considerations might come up for consideration. It stated that liquor is generally consumed in private and not displayed in public, which meant the usual conditions for post-sale confusion were absent. As per the Supreme Court, this notion may be especially relevant in sectors like fashion, luxury goods, automobiles, and food items, where brand visibility and public perception are essential aspects of consumer engagement and brand equity.
India’s Trademark Act, 1999 (“Indian TM Act”) closely mirrors the UK TM Act, with Section 29 of the Indian TM Act corresponding to Section 10 of the UK TM Act. Owing to the similar statutory structure, EU and UK case laws are frequently referenced by Indian courts while interpreting comparable principles or provisions. The principles established in Iconix regarding post-sale confusion, therefore, provide a persuasive and guiding basis for understanding the doctrine in India.
The definition of “use” under Section 10(4) of the UK TM Act, which is materially identical to Section 29(6) of the Indian TM Act 1999, is significant. The provisions define “use” for the purposes of constituting infringement and do not link infringement to an actual sale. In Iconix, the UK SC clarified that Section 10(4) contains no reference to the “act of sale”, which weakened Dream Pairs’ attempt to confine actionable confusion to the point-of-sale. The UKSC also highlighted that the likelihood of confusion is to be assessed based on perception built by “the public” and not only “the purchasing public”, which the Indian courts, too, have affirmed. Further, the UKSC’s clarification that damage to the origin function is complete once an average consumer is confused and that no additional harm is required, aligns with the approach adopted by Indian courts under Section 29, which similarly holds that the likelihood of confusion is sufficient to establish infringement, and that there is no requirement to prove actual damage.
Therefore, although the Supreme Court’s aforesaid observations were obiter, they constitute a guiding principle, and the lower courts are likely to rely on them in the context of relevant facts.
OUR VIEW
The Supreme Court’s acknowledgement of post-sale confusion in Pernod Ricard marks a significant shift in the way trademark infringement claims have ordinarily been assessed. Iconix clarifies that European trademark jurisprudence recognizes post-sale confusion as an independent ground for trademark infringement. Given the similarity between Indian and UK trademark statutes and Indian courts’ reliance on UK and European jurisprudence, there is no conceptual bar in recognizing this doctrine in India, as the Supreme Court confirmed. What remains to be seen, however, is the manner in which Indian courts will define the scope of this doctrine and the extent to which it will be applied in practice. In our view, the application of this doctrine will introduce a new dimension to the assessment of trademark infringement claims.
[1] https://jipel.law.nyu.edu/post-sale-confusion/#:~:text=Next%20time%2C%20the%20consumer%20will,harm%20from%20post%2Dsale%20confusion.
[2] Under Armour Inc. v. Aero Armour & Ors 2025 SCC OnLine Del 3784
[3] Baker Hughes Limited v. Hiroo Khushalani 2004 (12) SCC 628
[4] 2001 SCC OnLine Del 1029
[5] 2017 SCC OnLine Del 7392
[6] 2025 SCC OnLine SC 1701
[7] [2003] Ch 454
[8] [2011] EWHC (Pat) 244
[9] [2025] UKSC 25