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2. The facts leading to filing of abovementioned appeal are that the plaintiff is the owner of the trademark ‗Liv.52' registered under registration No.180564 in class 5 as of 10th July, 1957 in respect of medicinal preparation for treatment of disorder of liver. The said trade mark has been used since the year 1955. The case of the plaintiff is that the use of the trade mark LIV-T by the defendant in relation to medicinal preparation for curing liver disorder amounting to infringement of plaintiff's trade mark Liv.52 as the essential and distinguishable feature LIV which is distinctive and is used by the defendant. The trade mark LIV-T used by the defendant is phonetically and structurally identical with or deceptively similar to Liv.52 thus the same is in violation of statutory and exclusive rights granted in favour of the appellant under Section 29(1) of the Trade and Merchandise Marks Act, 1958.

―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

―17. We think that the view taken by Desai J., is right. It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognized that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with Desai J. that the marks with which this case is concerned are similar. Apart from the syllable ‗co' in the appellant's mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.‖ In the recent decision of United Biotech (P) Ltd. vs. Orchid Chemical and Pharmaceuticals Ltd. (supra), decided by the Division Bench of this Court, who noticed various earlier cases including SBL, Astrozenca and Schering Corporation (Supra), where two rival trade marks were ORZID and FORZID and in both the marks part of the active ingredient CEFTAZIDINE was taken by both the parties, still the Division has held that two marks are deceptively similar.