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In Case Of Dishonest Adoption Similarity Of Trademark Has To Be Seen Even If It Is Less

Trademark infringement cases often hinge on the balance between the similarity of trademarks and the element of dishonesty by the alleged infringer. In a recent case involving the trademarks "LIV.52" and "LIV.55 DS, LIV 999" the court's decision shed light on the significance of dishonesty and how it can tilt the scales in favor of the plaintiff, even if the similarity between the trademarks is not substantial.

The Case Overview:
The case at hand involves a dispute between the plaintiffs and the defendants regarding the use of the mark "LIV.52." Plaintiff 2 had obtained registration of this trademark with registration number 180564 dating back to July 10, 1957. The plaintiffs alleged that the defendants infringed upon their trademark by using the mark "LIV.55 DS and LIV 999" for a similar liver tonic. Furthermore, the defendants' packaging bore a trade dress strikingly similar to that of the plaintiffs.

The Court's Observations:
The court began by scrutinizing the trade dress of both parties. A mere glance at the packaging of the plaintiffs and the defendants revealed that the latter had intentionally replicated the trade dress of the former. This included the thin orange border at the top, the central white strip, and the green lower half of the bottle/package. The lettering, written in white with similar fonts, also resembled that of the plaintiffs. Even when analyzing the wordmarks in isolation, "LIV.52" and "LIV.55 DS and LIV 999" were unmistakably deceptively similar.

The Importance of Dishonesty:
In trademark infringement cases, the element of dishonesty plays a pivotal role. When the court is prima facie convinced that the defendant has intentionally copied or imitated the plaintiff, the presumption arises that the Defendant has successfully confused consumers. This presumption stems from the belief that the defendant's actions were driven by dishonesty. "When dishonesty on the part of the defendant is evident, the court's focus shifts towards the similarities between the trademarks, even if these similarities are not extensive."

In the case under consideration, the court observed that the defendant's trademarks, "LIV.55" and "LIV.999," were deceptively similar to the plaintiff's trademark "LIV.52." The court's ruling was influenced by the apparent dishonesty of the defendant in replicating the plaintiff's trade dress and trademark. Consequently, the suit was decreed in favor of the plaintiff.

The Concluding Note:
This case serves as a pertinent illustration of the legal principles governing trademark infringement cases. Dishonesty on the part of the alleged infringer can weigh heavily in favor of the plaintiff. When the court discerns that the defendant has deliberately copied or imitated the plaintiff, it presumes that consumer confusion is inevitable. In such instances, the court's attention is directed towards the similarities between the trademarks, even if they are not overwhelmingly alike.

The Case Law Discussed:
Case Title: Himalaya Wellness Company Vs Abony Healthcare
Date of Judgement/Order:17/10/2023
Case No. CS(COMM) 476/2021
Neutral Citation No: 2023:DHC:7668
Name of Hon'ble Court: High Court of Delhi
Name of Hon'ble Judge: C Hari Shankar, H.J.

Information and discussion contained herein is being shared in the public Interest. The same should not be treated as substitute for expert advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539

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