K.S. Gupta, J.
(1) plaintiff has filed this suit for permanent injunction etc. against the defendant, inter alia, on the allegations that it is engaged in the business of manufacture and sale of Ayurvedic medicinal preparations since 1930 and some of its well known Ayurvedic medicines are sold under the trade marks - Abana, Cystone, Diarex, Diabecon, Gasex, Geriforte, Herbolax, Liv 52, Lukol, Mentat, Pilex, Rumalaya, Septilin, Speman, Styplon, Tentex forte, Bonnisan drops, Geriforte syrup, Koflet syrup, Hicolin cream, Rumalaya cream etc. Liv-52 is basically a liver tonic prescribed for liver disorder and to protect the liver against various dys-functions, damages and hepatotoxine. Trade mark Liv-52 is a mark coined in 1955 by the plaintiff and it has no dictionary meaning or any meaning in common parlance. It is alleged that the plaintiff has been incurring approximately Rs. 3 crores per annum towards promoting sale of Liv 52 and the approximate annual turnover thereof for the year 1995-96 has been Rs. 30 crores and further that plaintiff is also the registered proprietor of trade mark Liv 52 under the Trade and Merchandise Marks Act, 1958 and has, Therefore, the statutory right of exclusive use of the said trade mark under the statute. It is stated that the defendant is also engaged in the business of manufacturing and marketing pharmaceutical preparations and has dishonestly and mala fide adopted trade mark Liv-T in relation to medicinal preparation meant to cure liver disorders. Trade mark "LIV 52" and "Liv-T" are deceptively similar, the essential and distinguishable feature of both the trade marks being identical i.e. "Liv" and the defendant''s product is bound to be presumed to be another liver related medicinal preparation originating from the plaintiff or having an association or nexus with the plaintiff. Suffix ''52'' in the plaintiff''s trade mark or "T" in the defendant''s trade mark are incapable of distinguishing the medicinal preparations of either of the parties. Use of trade mark "Liv-T" by the defendant which is phonetically and structurally identical to the trade mark "LIV 52" of the plaintiff amounts to violation of the plaintiff''s statutory right of exclusive use of the mark Liv 52 and infringement of trade mark registration Nos. 180564,290061 and 401959 u/s 29(1) of the Trade and Merchandise Marks Act, 1958. plaintiff, Therefore, sent a legal notice Dated 14.3.96 to the defendant calling upon it to immediately desist from such infringing use of the trade mark "Liv-T" but the defendant has neither cared to reply to the said notice nor stopped the use thereof. Hence the necessity arose to file this suit.
(2) Along with the plaint an application under Order 39 Rules 1 and 2 read with Section 151 CPC (LA NO. 4941/96) was also filed by the plaintiff and thereon vide order Dated 23.5.96 defendant has been restrained from using the mark Liv-T or any other deceptively similar mark to that of the plaintiff''s mark Liv 52 till the next date.
(3) Thereafter on 11.6.96 defendant filed application under Order 39 Rule 4 read with Section 151 CPC (IA No. 5531/96) for vacating the said order dated 23.5.96. It is alleged that the defendant is a renowned manufacturer and merchant of homeopathically pharmaceutical preparations and has collaboration with Boron Laboratories of France from whom it has obtained the technical know-how for many of its homeopathic formulations. It is alleged that the defendant obtained a License to manufacture "Liv-T" formulation as far back in 1987 -and that product has been available right from 1987 onwards. It is stated that the organ liver in the pharmaceutical trade is often abbreviated as LIV. It is denied that this abbreviation has been invented by the plaintiff. Trade marks with first syllable Liv were adopted in the trade well prior to 1955. Glindia Ltd adopted and registered at least two such trade marks Livadex & Livogen as far back as in December, 1942. Likewise East India Pharmaceutical Works Ltd of Calcutta got registered trade mark Livotone on 4th May, 1943. Advance Drug Manufacturing Co. Ltd. got registered its trade mark Livobin under No. 10911 on 20th January, 1943. Asepticus Company got registered Liver on in December 1944. In addition to that there are at least 8 other Ayurvedic and homeopathic preparations which are currently available in the market relating to the organ liver with brands with the first syllable Liv, namely Livomap liver tonic, Livion syrup, Livano liver tonic, Livotrit, Livosin ayurvedic liver tonic, Livoguard, Livomyn, Livotone liver tonic. It is further alleged that in terms of order dated 23.5.96 the plaintiff was required to comply with the provisions of Order 39, Rule 3 CPC within three days but despite repeated telephonic calls and sending of facsimile message Dated 30.5.96 by the defendant''s attorney M/s Lall and Sethi to Mr. Hemant Singh, Advocate for the plaintiff only an incomplete set was received by the defendant by post and that too on 31.5.96. That set does not even has a complete index and there are only 43 pages in the same. Injunction granted in favor of the plaintiff is, Therefore, liable to be set aside for want of non-compliance of Rule (3) of Order 39 CPC and also on merits.
(4) Notice of is 5531/96 was ordered to be issued to the plaintiffs through Counsel for 17th June, 1996 vide order Dated 12th June, 1996. As per the report of process server Dated 14.6.96 on the notice, Mr. Satish, Steno of Mr. Hemant Singh met the process server and refused to accept the notice. An affidavit of Mr. Bharat Singh, employed as clerk in the office of M/s Lall and Sethi Dated 17.6.96 was also permitted to be brought on record in the matter. On 17.6.96, is 5531/96 was ordered to be listed for 19.6.96 and on that date Mr. C.M. Lall appearing for defendant was required to inform the plaintiff''s Counsel through courier service that the said application is to be listed for hearing on 21.6.96. On 21.6.96 Shri Lall informed this Court that a letter was sent by him intimating the plaintiff''s Counsel that the application for vacating the ad-interim injunction is to be listed for 21.6.96 and in support thereof he filed a receipt which indicates that a letter to the plaintiff''s Counsel was sent through courier service on 19.6.96. However, no one appeared on behalf of the plaintiff on 21.6.96 and on that date I have heard Mr. C.M. Lall.
(5) Question which arises for consideration is whether the defendant''s trade mark "LIV-T" so nearly resembles the registered trade mark "LIV 52" of the plaintiff as to be likely to deceive or cause confusion. In support of submission that it does not, Mr. C.M. Lall has placed strong reliance on the authority of
"You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider who would be likely to buy those goods. In fact you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a a confusion - that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods - then you may refuse the registration, or rather you must refuse the registration in that case."
It is necessary to apply both the visual and phonetic tests. In Aristoc Ltd v. Rysta Ltd. 1945 Rpc 65 the House of Lords was considering the resemblance between the two words, "Aristoc" and "Rysta". The view taken was that considering the way the words were pronounced in English, the one was likely to be mistaken for the other. Viscount Maugham cited the following passage of Lord Justice Luxmoore in the Court of Appeal, which passage, he said, he completely accepted the correct exposition of the law :
"The answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of Section 12 of the Trade Marks Act, 1938, must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word and has perhaps an imperfect recollection of it who is likely to be deceived or confused. Little assistance, Therefore, is to be obtained from a meticulous comparison of the two words, letter by letter and syllable by syllable, pronounced with clarity to be expected from a teacher of elocution. The Court must be careful to make allowance for imperfect recollection and the effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to that person''s wants."
It is also important that the marks must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. Thus in Lavroma case, Tokalon Ltd. v. Davidson and Co. 32 Rpc 133, Lord Johnston said :
"....we are not bound to scan the words as we would in a question of comparatio literarum. It is not a matter for microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop."
(6) Applying the tests as laid down in the above authority to the facts of the present case I am of the view that the totality of the trade mark LIV-T of the defendant is such that it is likely to cause confusion or deception in the minds of the persons accustomed to the existing trade mark "LIV 52" of the plaintiff to presume that it is another liver related medicinal preparation originating from the plaintiff or having an association or nexus with the plaintiff-Company. That being so, the plaintiff has been able to make out a prima fade case for grant of ad interim injunction as claimed in the application filed under Order 39 Rules 1 and 2 read with Section 151 CPC (IA No. 4943/96). In para 5 of the plaint plaintiff has, inter alia, alleged that the approximate promotional expenditure incurred by it on the trade mark Liv 52 is Rs. 3 crores per annum and the approximate annual turnover for the year 1995-96 was over Rs. 30 crores. Looking at these figures the plaintiff-Company is also likely to suffer irreparable injury if the ad interim injunction prayed for is not granted to it. Balance of convenience lies in plaintiff''s favour.
(7) In para 4 of the application for vacation of the impugned order (IA 5531/ 96) defendant has taken the objection in regard to non-compliance of the provisions contained in Order 39 Rule 3 CPC by the plaintiff as per the order Dated 23.5.96. In terms of that order the plaintiff was to comply with the requirements of Order 39 Rule 3 CPC within three days. In above para 4 of the application itself defendant has admitted that an incomplete set was received by it by post on 31.5.96 and that set did not have the complete index and there were only 43 pages in the same. As no body has put in appearance on behalf of the plaintiff after the filing of the is 5531 / 96 one does not know on which date the set received by the defendant was dispatched by post. In the absence of that date of dispatch one does not further know if the delay in delivering the paper book was either on the part of the plaintiff or the postal authority. Further in said para 4 defendant has not disclosed as to which of the pages of the paper book still remain to be supplied by the plaintiff to the defendant. In these circumstances ad interim injunction granted in favor of the plaintiff in terms of the impugned order cannot be vacated only on the ground of non-compliance of Order 39 Rule 3 Cpc, as alleged.
(8) From the foregoing discussion, it must follow that the defendant has not been able to prima facie make out a case for vacation of the ad-interim injunction granted on 23.5.96. is 5531/96 is, Therefore, dismissed and the impugned order Dated 23.5.96 is confirmed.
