* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgement delivered on: 23.05.2025 + FAO(OS) (COMM) 174/2024 & CM No.46175/2024 & 52564/2024 UNDER ARMOUR INC ..... APPELLANT versus ANISH AGARWAL & ANR ..... RESPONDENTS Advocates who appeared in this case For the Appellant : Ms. Swathi Sukumar, Sr. Adv. with Mr. S.

Bansal, Mr. Rishi Bansal, Mr. Mankaran Singh, Mr. Kartik Malhotra, Mr. Rishabh Aggarwal & Mr. Ritik Raghuvanshi, Advocates.

For the Respondent : Mr. J. Sai Deepak, Sr. Adv. with Mr. Samik Mukherjee, Mr. Manosij Mukherjee & Mr.

Abhishek Avabhani, Advs CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE SACHIN DATTA

JUDGMENT

VIBHU BAKHRU, J.

1. The appellant [Under Armour, Inc] has filed the present intra-court appeal under Section 13 of the Commercial Courts Act, 2015 [CC Act] read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908 [CPC impugning the order dated 29.05.2024 [impugned order] passed by the Signature Not Verified Digitally Signed FAO(OS) (COMM) 174/2024 Page 1 of 66 learned Single Judge in I.A. 23362/2023 in CS(COMM) 843/2023 captioned Under Armour, INC. v. Anish Agarwal & Anr., whereby the appellant’s application under Order XXXIX Rules 1&2 of the CPC was disposed of. The appellant had filed the aforementioned suit for infringement of trademark, copyright and passing off. The appellant, inter alia, sought an interim order restraining the respondents from using certain trademarks [impugned marks] and other marks that are deceptively similar to the appellant’s trademarks.

2. In terms of the impugned order, the learned Single Judge has placed certain restrictions regarding the use of the impugned marks by the respondents, but had rejected the appellant’s prayer for ad interim order restraining the respondents from using the impugned marks, which the appellant alleges be deceptively similar to its registered trademarks and more particularly its registered word mark UNDER ARMOUR.

INTRODUCTION

3. The appellant contends that the impugned order is patently erroneous on various grounds including that the learned Single Judge has not considered various relevant factors for prima facie determining whether the use of the impugned marks constitutes infringement under Section 29 of the Trade Marks Act, 1999 [TM Act]. It is the appellant’s case that although the learned Single Judge had accepted that the deceptive trademarks used by the respondents would cause a confusion at the initial stage, yet has rejected the appellant’s claim that its marks were infringed on the anvil of the test of initial interest confusion. The appellant contends that the learned Single Signature Not Verified Digitally Signed FAO(OS) (COMM) 174/2024 Page 2 of 66 Judge had completely misapplied the said test on the erroneous premise that there may be ‘transient wonderment’ but no confusion in the minds of the customers at the time of purchase of the respondent’s products. The appellant disputes the prima facie finding that the use of the impugned marks by the respondents would not result in confusion in the minds of the customers. However, without prejudice to the said contention, the learned counsel for the appellant submits that the doctrine of initial interest confusion comes into play only when there is confusion at the initial stage, but not at the stage of consummation of the transaction. Thus, the findings of the learned Single Judge support the case of infringement of the appellant’s trademarks. It is also the appellant’s case that the respondents’ use of deceptively similar marks not only infringes its registered trademarks, but also constitutes passing off.

FACTUAL CONTEXT

4. The appellant is a company incorporated under the laws of the United States of America, with its registered office located at 1020 Hull Street, Baltimore, Maryland 21230, U.S.A. It was founded in the year 1996 by its founder Kevin Plank. The appellant is engaged in the business of manufacture, distribution and sale of a wide variety of goods, including casual a