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Issues Involved:
1. Whether the trade mark LIV-T can be said to be deceptively similar to or confusing with the trade mark LIV-52. 2. Whether the provisions of Order 39 Rule 3 are mandatory? If so, what is the effect of non-compliance therewith? Issue-Wise Detailed Analysis: 1. Deceptive Similarity of Trade Marks LIV-T and LIV-52 The court first examined the statutory provisions and principles under the Trade and Merchandise Marks Act, 1958, and relevant case law. A trade mark is defined as a mark used to indicate a connection in the course of trade between the goods and some person having the right to use the mark (Section 2(v)). A mark is deemed deceptively similar if it so nearly resembles another mark as to be likely to deceive or cause confusion (Section 2(d)). The court referred to several precedents to determine the likelihood of deception or confusion between the marks LIV-T and LIV-52. The principles from Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories were highlighted, where it was established that the resemblance between marks could be phonetic, visual, or based on the basic idea represented by the mark. The court also noted that the resemblance must be such that it is likely to deceive purchasers. The court found that the word "Liv" is an abbreviation of "Liver" and is commonly used in the market for medicines associated with liver ailments. The term "Liv" has become public juris, meaning it is a generic term that no one can claim exclusive rights over. The court emphasized that in the field of medicinal and pharmaceutical preparations, it is common to name drugs after the organ they treat or the main ingredient, which helps reduce chances of error. The court compared the two marks and concluded that the common feature "Liv" is descriptive and public juris, and customers would distinguish the medicines by the prefixes or suffixes (52 and T). The court also examined the packaging of the two products and found significant differences in color schemes, lettering, and presentation, further reducing the likelihood of confusion. The court concluded that the proprietor of Liv-52 was not entitled to an injunction restraining the use of LIV-T, as the marks were not deceptively similar. 2. Mandatory Provisions of Order 39 Rule 3 CPC The court then addressed the issue of whether the provisions of Order 39 Rule 3 CPC are mandatory and the effect of non-compliance. Order 39 Rule 3 allows for an ex parte injunction if the delay in granting the injunction would defeat its purpose. However, the applicant must comply with the requirements of Clauses (a) and (b) of the proviso, which are mandatory. The court referred to the case of Shiv Kumar Chadha v. MCD, where it was held that the requirement to record reasons for granting an ex parte injunction is mandatory. The court emphasized that non-compliance with these mandatory provisions should lead to the vacation of the ex parte order of injunction. In this case, the defendants argued that the plaintiff had failed to comply with the mandatory provisions by not providing a complete set of documents promptly. The court agreed with the defendants, stating that the plaintiff's non-compliance deprived the defendants of an opportunity for an early or urgent hearing on merits. Consequently, the ex parte order of injunction could not be allowed to operate any longer. Conclusion The court allowed the appeal, setting aside the impugned order of injunction granted by the learned Single Judge. The plaintiff's application for injunction was dismissed, and the defendants' application for vacating the ex parte injunction was allowed. No order as to costs was made.
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