HC restrains sale of ‘Liv.72’ over similarity with ‘Liv.52’ tablets

Kolkata: The Calcutta High Court has restrained the sale of a healthcare product branded as “Liv.72”, holding that its name and packaging are deceptively similar to the well-known liver medicine “Liv.52”.

Justice Ravi Krishan Kapur, while passing an interim order, held that the manufacturers of “Liv.52” had made out a strong prima facie case of trademark infringement, passing off and misrepresentation. The court said the balance of convenience and the risk of irreparable injury favoured granting protection, keeping in mind the nature of the product and the class of goods involved.

The court recorded that the plaintiffs have been carrying on business since 1930 and that “Liv.52” was adopted by their predecessor-in-interest in 1955. It noted that the product has been in open, continuous and uninterrupted use since then and that the plaintiffs hold valid and subsisting trademark registrations, including word mark registrations. The court observed that the product has been sold for decades in a distinct packaging and has acquired reputation and goodwill in the market.

After comparing the rival products, the High Court found that the impugned mark “Liv.72” and its packaging are deceptively similar to “Liv.52” in overall visual appearance. It noted that the respondents had adopted a similar colour combination of green, white and orange, identical to that of the plaintiffs, which was likely to cause confusion and deception among consumers.

The court also noted that the respondents had earlier applied for registration of the word mark “Liv.72”, which was rejected. Despite this, the product continued to be sold.

The court recorded that the application was filed on a proposed-to-be-used basis and held that there was prima facie evidence of bad faith.

The High Court granted interim relief restraining the respondents in terms of the prayers sought, with liberty to apply for vacating or modification. The matter will be taken up again in January, and the plaintiffs were directed to effect fresh service and file an affidavit of service.