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―2. Definitions and interpretation:

(d) ―deceptively similar‖: A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion;

(j) ―mark‖ includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof;

(v) ―trade mark‖ means -

16. The rival marks and packaging on the date of filing of the suit are scanned as under:

Test of Infringement

17. In order to establish infringement, the main ingredients of Section 29 are that the plaintiff's mark must be registered under the Trade and Merchandise Marks Act, 1958, the defendant's mark is identical with or deceptively similar to the registered trade, the defendant's use of the mark is in the course of trade in respect of the goods covered by the registered trade mark. The rival marks are to be compared as a whole. Where two rival marks are identical, it is not necessary for the plaintiff to prove further that the use of defendant's trade mark is likely to deceive and cause confusion as the registration shows the title of the registered proprietor and the things speak for themselves. In an infringement action, once a mark is used as indicating commercial origin by the defendant, no amount of added matter intended to show the true origin of the goods can effect the question. If court finds that the defendant's mark is closely, visually and phonetically similar, even then no further proof is necessary. It is not necessary for the plaintiff to adduce evidence of actual deception in order to prove the case of infringement. If packing of two products is different in an action of infringement, the same is immaterial. Its validity cannot be challenged in the infringement proceedings under the Trade and Merchandise Marks Act, 1958. (See Corn Products Refining Co. v. Shangrila Food Products Ltd. (supra), AIR 1963 SC 449 (V 50 C 63), Amritdhara Pharmacy Vs. Satya Deo Gupta and AIR 1965 SC 980, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, 1999 PTC (19) 81 (Del) (para 15), Automatic Electric Limited v. R.K. Dhawan and Anr. and 1963 Madras page 12 S.A.P. Balraj and Ors. Vs. S.P.V. Nadar and Sons and Another) Legal Effect of Registration

There exist many other examples of the same which are evocative of the same proposition which is that the mere fact that the word is derived from the name of the salt does not mean that it loose protection for all times to come. This is more so especially in the light of observation of the Supreme Court in Cadila(Supra) that the stringent measures are required to be taken to avoid any likelihood of confusion and deceptive especially in the case of medicines.

44. The findings of the learned Single Judge on this aspect are not correct and those are contrary to the judgments referred to above. As per settled law, it is established principle that both marks are to be compared as a whole. Let us examine the two cases decided by the Division Benches of this Court. In the decision reported 2008 (38) PTC 49 (Del.) (DB), Pankaj Goel v. Dabur India Ltd., two rival marks were HAJMOLA and SATMOLA. The appellant produced clear evidence before Court that MOLA was being used by many manufacturers of digestive product. Prefix portions of two marks were HAJ and SAT which are apparently different. The Division Bench of this Court after following various judgments of Supreme Court, which are referred by us, came to the conclusion that two marks are deceptively similar as the rival marks are to be compared as a whole and an injunction was issued. In case portion MOLA, which was common to the trade, as per the case of the appellant was to be ignored, then the question of similarity of two marks would not have arisen. Special Leave Petition was filed in Supreme Court, the same was also dismissed.

45. The learned Single Judge has not considered the voluminous evidence produced by the plaintiff, several orders obtained, notice issued and undertaking obtained from the various parties using the LIV as prefix to their respective trade marks. The evidence of PW-3 to PW-6 was completely ignored by the learned Single Judge who had approved survey report of the mark LIV. The plaintiff was able to adduce the evidence that it was a fit case of likelihood of confusion and deception and the two marks are deceptively similar.