The use of a trademark that is likely to cause confusion and deception among consumers is an infringement of the trademark owner's rights.

Manmohan Singh, J.:—

The above mentioned appeal has been filed by the appellant (hereinafter referred to as plaintiff) against the judgment and decree dated 3rd June, 2010 passed by the learned Single Judge in CS(OS) No. 111/2006 (old Suit No. 1305/1996) whereby the suit against the respondent (hereinafter referred to as defendant) for infringement of trade mark Liv.52 by use of trade mark LIV-T by the defendant was dismissed and it was held that there is no case made out of infringement of registered trade mark.

2. The facts leading to filing of above mentioned appeal are that the plaintiff is the owner of the trade mark 'Liv.52' registered under registration No.180564 in Class 5 as of 10th July, 1957 in respect of medicinal preparation for treatment of disorder of liver. The said trade mark has been used since the year 1955. The case of the plaintiff is that the use of the trade mark LIV-T by the defendant in relation to medicinal preparation for curing liver disorder amounting to infringement of plaintiff's trade mark Liv.52 as the essential and distinguishable feature LIV which is distinctive and is used by the defendant. The trade mark LIV-T used by the defendant is phonetically and structurally identical with or deceptively similar to Liv.52 thus the same is in violation of statutory and exclusive rights granted in favour of the appellant under Section 29(1) of the Trade and Merchandise Marks Act, 1958.

3. The case set up by the defendant is that the word 'LIV' is generic and common to the trade as the medicines in question manufactured and marketed by both the parties are meant for treatment of liver. Two products of parties are different products; one is an ayurvedic medicine and the other homeopathic preparation. The ayurvedic proprietary medicine is not sold through homeopathic outlets. Packaging and colour combination of two labels are different so as all other features. The composition of two products is also different. It is submitted that the organ liver in the pharmaceutical trade is often abbreviated as LIV and is used as a first syllable of over 50 pharmaceutical companies, include trade marks such as LIV CARD, LIV-UP, LIV-RIL-z, LIVO, LIVO-10, al, LIVAPLEX, LIVOFIT, LIVA, LIVOL, LIVDRO, LIVAZOL, LIVERITE, LIVERJET, LIVERNUT, LIVERPOL, LIVUP, LIVEX, LIVIVRON, LIVIBEE, LIVINA, LIVINOL, LIVINOL, LIVIPREP, LIVIRILE, LIVIRONVITA, LIVIRUBRA and LIVITA. Furthermore, LIV has been adopted as a first syllabus by various companies from a period prior to the claimed adoption of Liv.52 by the plaintiff itself which they claim since 1955. There are over 100 registrations in the record of the trade mark Registry as per the search reports obtained which show that many traders have applied for registration or obtained: he registration containing the word LIV. Therefore, there can be no monopoly of he word LIV.

4. From the pleadings of the parties, the following issues were framed by way order dated 30th November, 1998:

"1. Whether the plaint is signed, verified and the suit is instituted by a duly competent and authorized person?

2. Whether this Court has no territorial jurisdiction to entertain the present suit? —OPD

3. Whether the suit is maintainable in its present form?

4. Whether there is no cause of action for institution of the present suit? —OPD

5. Whether the suit is barred by limitation? —OPD

6. Whether the suit is bad for non-joinder of necessary parties? —OPD

7. Whether the suit is barred by principles of estoppel and waiver? —OPD

8. Whether the products of the defendant company can be sold only through homeopathic outlets? —OPD

9. Whether the Plaintiff is the proprietor of the trade mark 'Liv.52' in respect of drugs and Pharmaceuticals? —OPP

10. Whether the use of trade mark 'LIV-T' by the defendant amounts to infringement of trade mark registration numbers 180564, 290061 and 401959 in class 5? —OPP

11. Whether th