Delhi HC upholds order to restrain Rajasthan Aushdhalaya from making and selling medicines under Liv-333 name

The division bench of the Delhi High Court has upheld its single judge order to restrain Rajasthan Aushdhalaya from making and selling medicines under the name Liv-333 or any other name similar to global health companies’ Himalaya Global Holdings and Himalaya Wellness Co's trademark Liv.52, which is used as a liver tonic.

A bench comprising Justices C. Hari Shankar and Ajay Digpaul said that “we, in fact, are of the view that the adoption, by the appellant (Rajasthan Aushdhalaya), of a mark which was a portmanteau of 'Liv' as an abbreviation for liver and a number thereafter, cannot be treated as innocent,", adding that the obvious intent appears to have been to come close to the mark 'Liv.52' which was being used by the respondent (Himalaya).

Moreover, the registration, by Himalaya, of the mark ‘Liv.52’, dates back to July 1957, it said. “Given the reputation that the mark has amassed over time, there is every likelihood of other infringers having themselves adopted identical, or similar, marks, to capitalize on the respondents’ goodwill and reputation. The mere fact that other infringers are also coexisting cannot, quite obviously, provide a license to the appellant, to infringe,” the order stated.

However, the division bench sought response from the Himalaya companies on whether cost and damages can be imposed on Rajasthan Aushdhalaya, as directed by the single judge.

The Himalaya companies were manufacturing and marketing tablets under Liv.52 trademark and the medicine was used as a natural remedy for improving liver function and were sold in various forms and preparations, such as Liv.52 syrup, Liv.52 tablets, Liv.52 DS tablets, Liv.52 HB capsules, Liv.52 protec liquid and Liv.52 furglow liquid.

Himalaya claimed to have come to know in January last year of several listings of the mark Liv-333, as well as the logo by Rajasthan Herbal International under which the latter was selling preparations for liver treatment in capsule and tablet forms.

After cease and desist notice, Himalaya moved the court to restrain Rajasthan Aushdhalaya from using the mark. In May last year, the single judge bench while issuing summons granted ex parte restraint order asking Rajasthan Aushdhalaya from using the mark ‘Liv-333’, or any other mark which was identical or deceptively similar to the respondents registered ‘Liv.52’ trademark.