Liv.52 Trademark Infringement: Delhi High Court Grants Permanent Injunction In Favour Of Himalaya Wellness Company

The Delhi High Court on Tuesday granted a permanent injunction in favor of Himalaya Wellness Company, while decreeing a suit against defendants’ adoption of its trademarks and trade dress.

The plaintiffs had approached the court against defendants’ use of trade names “LIV.55 DS”, “LIVA 55” and “LIV. 999” for liver tonic similar to theirs, which was being marketed using a trade dress also deceptively similar to the plaintiffs’.

The plaintiffs (who sell their products under umbrella brand “Himalaya”) claimed usage of their trademark “LIV .52” since 1957, when it was registered. It was averred that due to continuous usage, the plaintiffs’ “LIV .52” marks had acquired goodwill and reputation, as well as become source identifiers.

In support of their case, the plaintiffs relied on the decision rendered by Division Bench of the Delhi High Court in Himalaya Drug Company v. SBL Ltd., wherein it was held that the expression “LIV” even in isolation was an infringement of the most prominent feature of plaintiffs’ registered trademark.

After a careful analysis, Justice C. Hari Shankar observed that the defendants (who had been marketing their products since 2019) had consciously adopted a trademark and trade dress deceptively similar to the plaintiffs’.

The Court opined: “…A bare glance at the trade dress of the plaintiffs and the defendants makes it ex facie apparent that the defendant has consciously copied the trade dress of the plaintiff”.

It was further noted that the products under consideration being Ayurvedic preparations sold over-the-counter, there was every likelihood of an unwary consumer purchasing the defendants’ product believing it to be the plaintiffs’.

Adverting to the likelihood of confusion between the parties’ trademarks, Justice Shankar said:

“To the eyes of a consumer of average intelligence and imperfect recollection, there is every chance of confusion between the marks LIV.55 and LIV.52 especially when both marks are used for liver tonic on bottles and packs which are identical in appearance.”

Pertinently, the Court remarked that it was not uncommon in the pharma industry for trade names to be suffixed with different strengths (such as “Azithral 250” and “Azithral 500”). “The appearances of the packs are, in such cases, deliberately made dissimilar, so as to avoid any confusion between products of different strengths”, the Court said.

As such, the defendants’ use of “LIV” in their trade name and adoption of a deceptively similar trade dress were held to give rise to confusion. The fact that their products reflected the name of the company “Abolab Herbals” was held to make no substantial difference to the likelihood of confusion between the trade dresses of the parties.

On rival contentions regarding sale of infringing products, the Court opined that actual sale was not a pre-requisite for infringement.

In effect, the defendants were injuncted against using marks/trade dress deceptively similar to the plaintiffs’ in respect of their “LIV .52” product, either for liver tonics or for any other pharma preparations or allied goods.

Ms. Prachi Agarwal and Ms. Kanupriya Chawla, Advocates appeared for Plaintiffs

Mr. Gagnish Bhatia Defendant No.1 appeared in person

Case Title: Himalaya Wellness Company & Ors. v. Abony Healthcare Limited through its Directors & Anr.

Citation: 2023 LiveLaw (Del) 1002

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