The Himalaya Drug Co. Vs. M/s S. B. L. Ltd.
[2013 (53) PTC 1 (Del.) (DB)]
> The Appellant filed a suit against the Respondent for infringement of trade ,ark 'Liv-52' by use of the trade mark 'Liv-YT'
> The Ld. Single Judge dismissed the suit of the Appellants holding that the mark 'LIV' is a publici juris and there is no similarity between the two trademarks. 'Liv' will be considered as the generic on account of the fact that it is used in respect of medicine used for treatment of ailment of 'LIVER' and non distinctive part of the mark and it is to be ignored even if the two rival marks are to be taken as a whole.
> The Hon'ble Divison Bench of the court held that the onus of proving that the term 'LIV' has become generic lied heavily on the Defendant, more so in the light of the fact that the Trade Mark of the Plaintiff had voluminous sales, was being used since the year 1955 and was registered since the year 1957 and as seven years had expired from the date of registration, the Registration of the trade mark was taken to be valid as per S. 32 of the Trade Marks Act, 1958.
> The validity of the Trade Mark was also not challenged by the defendant. Defendant itself has applied for registration of the mark 'LIV T'. The court also noted that other than the single judge no other Court or Tribunal has held 'LIV' to be generic. The court also observed that consumer asked for Plaintiff's product as 'LIV 52' thus 'LIV' was the essential and prominent feature of the mark 'LIV 52'. Thus, the court over-ruled the test of residual portion of marks as followed by the single judge in peculiar facts and circumstances of the present case, and restrained the defendant from using the mark 'LIV - T'.
> However, as the counsel for the Plaintiff had given consent to use of the word 'LIV' with another vowel and then use with 'T' or as one word like 'LIVOT' or 'LIVIT', thus court allowed the Defendant to amend its mark acordingly to a mark which will not be similar to the mark of the Plaintiff.
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