2010 (6) TMI 863 - HC - Indian Laws

Summary

Issues Involved:
1. Authorization and competence to institute the suit.
2. Territorial jurisdiction.
3. Maintainability of the suit.
4. Cause of action.
5. Limitation.
6. Non-joinder of necessary parties.
7. Estoppel and waiver.
8. Sale of Defendant's products through homeopathic outlets.
9. Proprietorship of the trademark "Liv.52".
10. Infringement of trademark.
11. Passing off.
12. Publici juris status of the word "LIV".
13. Delay, laches, and acquiescence.
14. Rendition of accounts.
15. Relief.

Detailed Analysis:

Issue 1: Authorization and Competence
The Plaintiff proved the authorization of Mr. B.L. Kakroo through a power of attorney (Ex. PW 1/F). The Defendant did not cross-examine on this aspect. The issue was decided in favor of the Plaintiff.

Issue 2: Territorial Jurisdiction
The Plaintiff demonstrated through an invoice (Ex. P-2) that the Defendant's product was sold in Delhi. The Defendant did not contest this. The issue was decided in favor of the Plaintiff.

Issue 3: Maintainability of the Suit
The Plaintiff provided evidence of the partnership firm's constitution and trademark registration changes (Ex. PW1/I, PW1/J, PW1/K). The Defendant did not cross-examine on these points. The issue was decided in favor of the Plaintiff.

Issue 4: Cause of Action
The Plaintiff's averment in para 14 of the plaint established the cause of action due to the Defendant's use of the trademark LIV-T. The Defendant failed to disprove this. The issue was decided in favor of the Plaintiff.

Issue 5: Limitation
The Plaintiff filed the suit within two months of discovering the Defendant's use of LIV-T and issuing a legal notice. The Defendant did not prove the suit was barred by limitation. The issue was decided in favor of the Plaintiff.

Issue 6: Non-joinder of Necessary Parties
The Defendant did not show that the suit was bad for non-joinder of necessary parties. The issue was decided in favor of the Plaintiff.

Issue 7: Estoppel and Waiver
The Defendant led no evidence to show that the suit was barred by estoppel and waiver. The issue was decided in favor of the Plaintiff.

Issue 8: Sale through Homeopathic Outlets
The Defendant argued that homeopathic drugs must be sold through authorized outlets. However, evidence showed that ayurvedic and homeopathic drugs can be sold side-by-side in licensed pharmacies. The issue was decided against the Defendant.

Issue 9: Proprietorship of the Trademark "Liv.52"
The Plaintiff produced registration certificates and evidence of long usage and sales. The Defendant did not challenge the validity of the registration. The issue was decided in favor of the Plaintiff.

Issue 10: Infringement of Trademark
The Plaintiff argued that LIV-T was deceptively similar to Liv.52. The Defendant contended that "LIV" was generic and common to the trade. The court found no visual, phonetic, or structural similarity likely to cause deception or confusion. The issue was decided against the Plaintiff.

Issue 11: Passing Off
The Plaintiff did not press the relief of passing off. The issue was not decided.

Issue 12: Publici Juris Status of "LIV"
The Defendant showed that "LIV" is an abbreviation for liver and used by many in the trade. The Plaintiff did not claim monopoly over "LIV". The issue was decided in favor of the Defendant.

Issue 13: Delay, Laches, and Acquiescence
The Defendant did not prove that the suit was barred by laches. The issue was decided in favor of the Plaintiff.

Issue 14: Rendition of Accounts
Since there was no deceptive similarity found, the Plaintiff was not entitled to rendition of accounts. The issue was decided against the Plaintiff.

Issue 15: Relief
The suit was dismissed with costs of Rs. 50,000 to be paid by the Plaintiff to the Defendant within four weeks.