The case of Under Armour, Inc. Vs. Anish Agarwal & Anr. represents a significant adjudication in the realm of trademark law in India, focusing on the principles of trademark infringement and passing off under the Trade Marks Act, 1999. This case involves a dispute between Under Armour, Inc., a globally recognized American sportswear company, and the respondents, Anish Agarwal and his company, who were using the mark "AERO ARMOUR" for apparel. The core contention was whether the respondents’ mark was deceptively similar to Under Armour’s registered trademark "UNDER ARMOUR," leading to potential consumer confusion. The appeal before the High Court of Delhi arose from a Single Judge’s order denying a complete interim injunction, prompting the appellate court to examine the doctrines of initial interest confusion, dishonest adoption, and the scope of trademark protection for well-known marks. 

Factual Background: Under Armour, Inc., a company incorporated in the United States in 1996, is a prominent manufacturer and distributor of sports apparel, casual apparel, footwear, and related products. The company, founded by Kevin Plank, entered the Indian market in 2017 through Amazon Fashion and opened its first retail store in New Delhi in 2019. Under Armour holds multiple trademark registrations in India and globally, including the word mark "UNDER ARMOUR" and various formative marks such as "GAMEDAY ARMOUR," "ARMOURVENT," and "UA." These marks are registered under various classes, including Class 9, 18, 25, 28, 35, 41, and 42, covering apparel, footwear, and related services. Notably, the standalone word "ARMOUR" is not registered in India but is registered in jurisdictions like the United States, European Union, and Canada. Under Armour’s trademarks are globally recognized, associated with significant goodwill due to extensive advertising, sponsorships, and their use in blockbuster movies.

The respondents, Anish Agarwal (a director and promoter) and his company, operate in India, manufacturing and selling clothing and footwear under the trademark "AERO ARMOUR." They also use a logo combining a shield, airplane, and stripes, reflecting military and aviation themes. Their products, primarily casual apparel, feature designs inspired by the Indian armed forces, with taglines like "WEAR YOUR VALOUR" and "WEAR YOUR PRIDE." The respondents applied for registration of "AERO ARMOUR" under Class 25 in India, which Under Armour opposed, alleging deceptive similarity with its trademarks. The respondents’ products are sold at a significantly lower price point (e.g., ₹799 for T-shirts) compared to Under Armour’s products (e.g., ₹2,000 for similar items), raising concerns about trademark dilution.

Procedural Background:
Under Armour initiated a suit, CS(COMM) 843/2023, against the respondents in the High Court of Delhi, alleging trademark infringement, passing off, and copyright infringement. The company sought an interim injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, to restrain the respondents from using "AERO ARMOUR" and "AERO ARMR" or any deceptively similar marks. The Single Judge, in an order dated May 29, 2024, disposed of the application by imposing limited restrictions on the respondents’ use of their marks but declined to grant a full injunction. The Single Judge reasoned that there was no likelihood of confusion due to differences in the products’ themes (sports apparel for Under Armour versus military-themed casual apparel for the respondents), distinct market channels, and the sophistication of modern consumers. The respondents undertook not to use "ARMR" or place "AERO ARMOUR" on sleeves in a manner similar to Under Armour’s branding.

Aggrieved by the partial relief, Under Armour filed an intra-court appeal under Section 13 of the Commercial Courts Act, 2015, read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908, challenging the Single Judge’s order. The appellant argued that the Single Judge misapplied the test of initial interest confusion and failed to recognize the deceptive similarity between "AERO ARMOUR" and "UNDER ARMOUR," particularly given the respondents’ alleged dishonest adoption of the mark.

Legal Issue: The primary legal issue in this case was whether the respondents’ use of the mark "AERO ARMOUR" constituted trademark infringement or passing off under the Trade Marks Act, 1999, particularly Section 29, by being deceptively similar to Under Armour’s registered trademark "UNDER ARMOUR." A related issue was whether the respondents’ adoption of the mark was dishonest, warranting an interim injunction. The court was tasked with determining whether the Single Judge erred in denying a full injunction, especially in light of the doctrine of initial interest confusion and the protection afforded to well-known trademarks.

Discussion on Judgments: The court referenced several judgments to analyze the issues of trademark infringement, initial interest confusion, and dishonest adoption. The appellant relied on Under Armour, Inc. v. Aditya Birla Fashion & Retail Ltd. (2023:DHC:2711), where a Single Judge of the Delhi High Court granted an injunction against the mark "STREET ARMOUR" for being deceptively similar to "UNDER ARMOUR." The court in that case emphasized initial interest confusion, holding that a customer of average intelligence and imperfect recollection could be confused by the defendant’s mark, even if the confusion was resolved before purchase. The Division Bench found this precedent relevant, noting the phonetic and structural similarity between "AERO ARMOUR" and "UNDER ARMOUR," particularly in the use of "ARMR" and sleeve placement.

The respondents’ defense was addressed through Institute Europeen D. Administration Des Affaires, Insead v. Fullstack Education Pvt. Ltd.* (2023 SCC OnLine Del 3016), where the Delhi High Court held that phonetic similarity between "INSEAD" and "INSAID" could cause initial interest confusion, even among sophisticated consumers like students. The court clarified that consumer sophistication does not preclude confusion, as modern business trends like licensing and mergers may lead consumers to assume an association between similar marks. This case supported the appellant’s argument that even brief confusion satisfies the infringement test under Section 29.

The court also cited Midas Hygiene Industries (P.) Ltd. v. Sudhir Bhatia & Ors. ((2004) 3 SCC 90), where the Supreme Court held that dishonest adoption of a mark warrants an injunction, even if there is a delay in bringing the action. This precedent was pivotal in the court’s finding that the respondents’ adoption of "AERO ARMOUR," given its similarity to "UNDER ARMOUR" and Under Armour’s global reputation, was prima facie dishonest.

Additional cases referenced included Baker Hughes ((1998) 74 DLT 745), which discussed the irrelevance of consumer sophistication in preventing initial confusion, and Mobil Oil Corp. Vs. Pegasus Petroleum Corp., where the U.S. court recognized that initial confusion could harm the trademark owner by attracting customers to a competitor’s product. Similarly, Lois Sportswear, USA Inc. v. Levi Strauss & Co. and Wincharger Corporation v. Rinco, Inc. (297 F.2d 261 (1962)) were cited to underscore that sophisticated consumers are not immune to confusion, especially when marks are highly similar. The court distinguished John Hayter Motor Undertaking Agencies Ltd. v. RBHS Agencies Limited ([1977] 2 Lloyd’s Rep. 105), rejecting its view that sophisticated consumers are unlikely to be confused, as it conflicted with the principle of initial interest confusion.

Reasoning and Analysis of the Judge:The Division Bench conducted a thorough analysis of the Single Judge’s order and the principles of trademark law. The court found that the Single Judge erred in concluding that there was no likelihood of confusion, particularly by misapplying the doctrine of initial interest confusion. The Bench emphasized that Section 29 of the Trade Marks Act does not require prolonged confusion; even transient confusion or "wonderment" at the initial stage is sufficient to establish infringement. The Single Judge had acknowledged that customers might experience transient wonderment upon encountering "AERO ARMOUR" but assumed that informed consumers would resolve this confusion through further inquiry. The Division Bench rejected this reasoning, holding that the mere occurrence of initial confusion, even if brief, satisfies the infringement criteria under Section 29(2).

The court further analyzed the similarity between the marks, noting that "AERO ARMOUR" and "UNDER ARMOUR" share phonetic and visual similarities, particularly due to the dominant word "ARMOUR" and the respondents’ use of "ARMR," which mirrored Under Armour’s branding. The placement of "AERO ARMOUR" on the sleeves of T-shirts, similar to Under Armour’s practice, reinforced the likelihood of confusion. The Bench disagreed with the Single Judge’s reliance on the anti-dissection rule, which prohibits analyzing parts of a trademark in isolation, as the overall commercial impression of the marks was deceptively similar.

On the issue of dishonest adoption, the court found prima facie evidence that the respondents knowingly adopted a mark similar to "UNDER ARMOUR," given the appellant’s global reputation and the respondents’ operation in the apparel industry. The respondents’ claim that "AERO ARMOUR" was inspired by aeronautics and military themes was deemed insufficient to negate the inference of dishonest intent, especially since they used the mark in a manner mimicking Under Armour’s branding. The court relied on Midas Hygiene to assert that dishonest adoption warrants an injunction.

The Bench also addressed the Single Judge’s distinction between sports apparel (Under Armour) and casual apparel (respondents), finding it unpersuasive. Both parties operated in the apparel market, used similar trade channels, and targeted overlapping consumer bases, increasing the likelihood of confusion. The significant price difference (₹2,000 vs. ₹799 for T-shirts) was seen as potentially diluting Under Armour’s brand, further supporting the need for an injunction.

Final Decision: The Division Bench allowed the appeal, setting aside the Single Judge’s order dated May 29, 2024. The court granted an interim injunction, restraining the respondents from using the marks "AERO ARMOUR," "AERO ARMR," or any other mark deceptively similar to "UNDER ARMOUR" until the disposal of the suit. All pending applications were disposed of, and the court directed that the issues would be finally adjudicated at trial.

Law Settled in This Case: The case clarified several key principles of trademark law in India. First, it established that initial interest confusion, even if transient, constitutes trademark infringement under Section 29 of the Trade Marks Act, 1999. The duration of confusion is irrelevant; the mere likelihood of a customer associating the impugned mark with the registered mark, even briefly, satisfies the infringement test. Second, the court affirmed that dishonest adoption of a mark, particularly one that mimics a well-known trademark’s phonetic, visual, or structural elements, warrants an interim injunction, as per Midas Hygiene Industries (P.) Ltd. v. Sudhir Bhatia & Ors.

Third, the strength of a trademark determines the degree of protection, requiring new entrants to maintain a greater distance from well-known marks to avoid infringement.

Fourth, consumer sophistication does not preclude infringement, as even informed consumers may experience initial confusion due to modern business practices like licensing or mergers. Finally, the court emphasized that the global appreciation test, when applied correctly, considers the overall commercial impression of marks, including their use in similar trade channels, to assess the likelihood of confusion.

Case Detail: Under Armour, Inc. Vs . Anish Agarwal: May 23, 2025:FAO(OS) (COMM) 174/2024: 2025:DHC:4243:High Court of Delhi: Hon'ble Mr. Justice Vibhu Bakhru and Hon'ble Mr. Justice Sachin Datta

Disclaimer: The information shared here is intended to serve the public interest by offering insights and perspectives. However, readers are advised to exercise their own discretion when interpreting and applying this information. The content herein is subjective and may contain errors in perception, interpretation, and presentation.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: ajayamitabhsuman@gmail.com, Ph no: 9990389539