Himalaya Wellness Company (Himalaya) is involved in the manufacturing of Ayurvedic medicaments, preparations, and pharmaceutical-grade herbal and healthcare products since 1930. Its predecessors in business launched "Liv.52", a formulation for the treatment of hepatic ailments in the year 1955. The product is available in the market in different variants; such as, "Liv 52 Syrup", "Liv 52 DS Syrup", "Liv 52 Tablets" etc. All the products are sold under Himalaya's parent brand 'Himalaya'.
Himalaya had approached the Delhi High Court alleging infringement of its registered trademark "Liv.52” by Abony Healthcare Limited (Abony) seeking ex-parte injunction against Abony restricting it from using the trade names "Liv.55 DS", "Liv.999", and "Liva 55 DS". Himalaya claimed that its products have a distinctive orange, green and white colour scheme, which, over a period of time, has become indelibly associated with its product. Himalaya also stated that the artwork involved in its label constitutes "original artistic work" within the meaning of Section 2(c) of the Copyright Act, 1957.
Himalaya argued that Abony was manufacturing and selling its product under the name "Liv.55 DS". It added that the label of Abony’s “Liv.55 DS" is almost identical to Himalaya’s label. A comparison of the two products has been reproduced here for the ready reference of the readers.
Source- Judgment
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Himalaya highlighted the following elements of deceptive similarity between its product and that of Abony:
- almost identical amber colour bottle;
- an identical white background behind the main brand name;
- identical green and orange colour combination;
- Identical use of white lettering to depict in the same font the name of the product;
- Usage of "Liv" which is a prominent feature of Himalaya’s marks;
- Identical green background; and 7. Identical use of orange band on the top and bottom of the label.
Himalaya also annexed orders passed by the Delhi High Court granting ex-parte ad interim injunctions, where prima facie infringement of the Himalaya’s registered "Liv.52" trademark was found to exist. Himalaya stated that it also sent a cease-and-desist notice to Abony, however, no corrective response from Abony was received. The Court held that it prima facie appears that Abony is infringing Himalaya’s registered trademark and is also seeking to pass off its products as those associated with Himalaya. The Court inferred this from the use of the slogan "Liv.55 DS" and "Liv.999" on Abony’s website.
The Court also added that a cease-and-desist notice was issued to Abony by Himalaya and despite sufficient time having passed thereafter, Abony failed to discontinue its infringing activities, hence it is of the opinion that a clear case for ex-parte ad interim injunction exists.
Hence on October 21, 2021 the Court granted an ex-parte interim injunction in favour of Himalaya restraining Abony from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in any manner with regard to any products and services, including but not limited to liver formulation under the marks Liv.999, Liv.55, Liv.55 DS and Liva 55 DS and/or any other mark which is deceptively similar to the Himalaya’s registered mark Liv.52 or any other trademarks, or use the orange and green colour combination till the next date of hearing.
The present status of the case is that Himalaya has submitted that despite lapse of 30 days prescribed limitation period as per the Commercial Courts Act, 2015 written statement has not been filed by Abony. The Delhi High Court by an order on November 26, 2021 has listed the matter for completion of pleadings on February 11, 2022.
