Sanat Products Ltd. vs Glade Drugs And Nutraceuticals Pvt. … on 4 November 2003

Delhi High Court
Sanat Products Ltd. vs Glade Drugs And Nutraceuticals Pvt. … on 4 November, 2003
Equivalent citations: 2003(27)PTC525(DEL)
Author: Mahmood Ali Khan
Bench: Mahmood Ali Khan
JUDGMENT

Mahmood Ali Khan, J.

1. In a passing off action the plaintiff has filed an application IA 8234/03 (Order 39, Rules 1 & 2 CPC) for grant of an interlocutory injunction order fur restraining the defendants from using the trademark ‘REFORM’ and from doing any other thing as may lead to confusion or deception resulting in passing off defendants’ goods as those of the plaintiff sold under the trademark ‘REFIRM’.

2. Plaintiff is a company which is manufacturing and marketing a large number of pharmaceutical preparations for different diseases. Plaintiff manufactured medicine for osteoporosis and marketed it under the trademark ‘REFIRM’. It also applied for this trademark to be registered in its name on 30.1.0.2001. By virtue of plaintiff’s prior adoption of the trademark ‘REFIRM’ bona fidely the plaintiff had become proprietor thereof. It started marketing the medicinal preparation under this trademark in January, 2002. It has become best selling pharmaceutical preparation in its segment. Trademark ‘REFIRM’ had acquired immense reputation and goodwill and had come to he exclusively associated and identified and recognized with the plaintiff. Plaintiff on account of continuous and exclusive use of the trademark ‘REFIRM’ and extensive publicity and advertisement has acquired under Common Law right of exclusive and undisturbed use of the said trademark in relation to the goods of its manufacture and sale. Plaintiff spent as much as Rs. 10.00 lac on the publicity and advertisement of its product in the year of its launch. In February, 2003 plaintiff came to know that defendant No. 2 is manufacturing and defendant No. 1 is marketing its medicinal preparation for treatment of osteoporosis under the trademark ‘REFORM’. Plaintiff served legal notice but did not receive any reply. It issued a reminder on 5.5.2003. Defendant No. 1 sent its reply dated 12.5.2003 which showed that the defendant far from desisting, intended to continue with the infringement of the plaintiff’s trademark. Defendants’ adoption of the trademark ‘REFORM’ is visually, phonetically and conceptually similar to the trademark of the plaintiff in respect of the similar goods and it would lead to confusion and deception in the around of the customers that they were buying the goods of the plaintiff. Defendants had infringed upon the proprietory right of the plaintiff under the Common Law right acquired for exclusive use of the trademark ‘REFIRM’ by the plaintiff. The plaintiff prayed for grant of relief of permanent injunction restraining the defendants from manufacturing and selling its product adopting trademark ‘REFORM’ which was deceptively similar to the plaintiff’s trademark ‘REFIRM’; a decree of mandatory injunction directing the detendants to deliver up all the labels, stationery articles, blocks, dies and any other material bearing the impugned get-up/layout for the purpose of destruction/erasure; a decree of rendition of accounts of the profit illegally earned by the defendants and; a decree for damages of Rs. 5.01 lacs.

3. Counsel for defendants had stated that the reply to the interlocutory injunction order and the written statement has been filed yesterday. Same had not been added to the record but for hearing on the ad interim injunction application, a copy of the reply and the written statement which was supplied to counsel for plaintiff was produced which has been taken into consideration.

4. Defendant No. 1 in the written statement refuted the allegation of the plaintiff that it was infringing the proprietory right of the plaintiff in the trademark ‘REFIRM’ by manufacturing and selling its own product adopting trademark ‘REFORM’. A discrepant allegation was made in regard to the time since when the defendants started manufacturing and selling its medicinal products under the trade mark ‘REFORM’. In para-1 of the preliminary submissions it was alleged that defendant No. 1 adopted this trademark in June, 2002. In para-10 of the reply on merit it was mentioned that it started selling its product under this trademark in October, 2002 and in para-18 of the written statement it was alleged that the defendants started sale of the product under trademark ‘REFORM’ in the month of September, 2002. Anyhow, the defendants pleaded that word ‘REFORM’, is a common word and is commonly known and used in India and the world over. It is generic and descriptive and can be used by anyone. The product sold ,under this trademark was intended for reformation of the bones so the defendants cannot be said to have done anything wrong as the product could not have been described in a better way than the descriptive mark ‘REFORM’. The defendants had no intention of passing off its own product as that of the plaintiffs as both the words ‘REFIRM’ and ‘REFORM’ have different meaning.

5. It was also alleged that when the products are sold under descriptive mark or generic mark, there can never be any confusion. Moreover, the packaging used by the defendants are totally different and there is no similarity at all between the two packaging. The product of the defendants is of superior quality as compared to the plaintiff’s product. The sale figure of the product under the trademark “REFORM” in-a small territory is about Rs. 42.00 lacs whereas sale of the plaintiffs product under the trademark ‘REFIRM’ all over India is only Rs. 74.00 lacs. Popularity of the defendants’ product made the plaintiff to come to the court with mala fide motive. Plaintiffs suit deserves to be dismissed.

6. In the reply to the application also similar allegations have been made and it is prayed that the application may be dismissed.

7. Plaintiff has argued that the pharmaceutical preparation of the plaintiff for treatment of osteoporosis is manufactured and sold under the trademark ‘REFIRM’ since January, 2001. He has invited attention to the application of the plaintiff dated 30.10.2001 filed with the Registrar of Trademark for registration of its trademark ‘REFIRM’ under Clause-V. He also drew attention to the copy of the invoice dated 12.4.2002 relating to the sale of ‘REFIRM’ tablets. There is another invoice dated 22.3.2002 which also showed that ‘REFIRM’ tablets were being sold by the plaintiff in March 2002. Counsel for plaintiff has stated that the pharmaceutical preparation of the plaintiff sold under the trademark ‘REFIRM’ on account of extensive publicity and advertisement had acquired exclusiveness and distinctiveness of the product of the plaintiff and the trademark ‘REFIRM’ is recognized by the common customer and dealers as a product of plaintiff. It is argued that the defendants by adopting visually, phonetically and conceptually similar trademark ‘REFORM’ for similar pharmaceutical preparation, subsequently intended to cash upon the reputation of the plaintiff’s product. According to him offensive trademark of the defendant is deceptively and confusingly similar to the trademark ‘REFIRM’ of the plaintiff may lead to confusion in the mind of customers and dealers that they were buying the product of the defendants when they had no intention to buy it and wanted to buy the medicinal preparation manufactured by the plaintiff. It is argued that the defendants are guilty of passing off and they are liable to be injucted from manufacturing and selling their pharmaceutical preparation under the trademark ‘REFORM’ during the pendency of the suit.

8. The argument of counsel for defendants, on the other hand are four-fold. His first argument is that both the trademarks ‘REFIRM’ adopted by the plaintiff and ‘REFORM’ adopted by the defendants are of Schedule ‘H” drugs which is sold strictly on prescription by a medical practitioner and a doctor, therefore, there is no possibility of any confusion or deception in the mind of the customer or the trader that the goods sold under the trademark ‘REFORM’ has its origin from the plaintiff. He placed strong reliance on the judgment of the Gujarat High Court in Ciba Geigy Ltd. v. Sun Pharmaceutical Industries, PTC (Suppl) (1) 575 (Guj) in support of his argument. His second contention is that the word ‘REFORM’ is a common English word and is descriptive and generic so there is no bar to its adoption and use by anyone. He has pointed out to the exmaination and search report dated 27.8.2002 and has argued that it does not show the name of the plaintiff’s trademark there. He has cited Automatic Electric Limited v. R.K. Dhawan and Anr., 1999 (19) PTC 81 in support of his argument. Thirdly, he has drawn attention to para-16 of the application under consideration wherein it was alleged that the defendants are selling its product under trademark ‘REFORM’ at a very low price of Rs. 35/- per strip of 10 tablets against the product of the plaintiff sold under the trademark ‘REFIRM’ at a price of Rs. 99/-per strip of 10 tablets. He argued that the grievance of the plaintiff is that the defendants were selling its medicinal product cheaper than the plaintiff and that is the reason behind filing the present suit. His last argument is that the plaintiff had valued the suit for the purpose of jurisdiction at Rs. 5.01 lacs and has paid the fee on it, but the aggregate valuation of the suit has been done by the plaintiff at Rs. 25,01,400/-, therefore, the plaintiff should be directed to pay the court fee also on the aggregate value of the suit for the purpose of jurisdiction.

9. To controvert, the counsel for plaintiff has drawn attention to Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 PTC 300 (SC) where it was held that confusion and deception may occur even in the pharmaceuticals products and medicines which are sold on prescription of doctors or which are dispensed by professionally trained individuals. He also referred to the judgment of this Court in Ciba Geigy Ltd. v. Crosslands Research Laboratories Ltd., 1996 PTC (16) 1 wherein also it was laid down that there is possibility of confusion, deception and mistake of two medicinal products sold by phonetically, constructively or visually similar trademarks even when they are sold by prescription by doctors and medical practitioners and sold by qualified pharmacist. Counsel for plaintiff also referred to an American case R.J, Strasenburgh Co. v. Kenwood Labs Inc., 106 USPQ 379 wherein a Commissioner of Patent observed that the physicians are not immune from confusion in medicines even if they are sold only on prescription. Counsel for plaintiff has also argued that the defendants are not clear in their mind. At one place in the written statement it was pleaded that word ‘REFORM’ was descriptive and generic and on the other it claimed that it was a trademark adopted by it for selling its pharmaceutical preparations. It was argued that even the common words may be adopted as a trademark. The defendants themselves have applied for registration of their trademark ‘REFORM’. Plaintiff has also filed an application for registration of its trademark ‘REFIRM’. He also cited Automatic Electric Limited (supra) it was held that if the defendant was also claiming proprietory right and monopoly in a generic name, it does not lie in their mouth to say that the word adopted by him is a generic expression. In this case the dispute was on the proprietory right of the trademark “DIMMER DOT”. Counsel for plaintiff also argued that the plaintiff is an established user of the trademark ‘REFIRM’ prior in time than the medical trademark ‘REFORM’ used by the defendant and, therefore, it is entitled to file a passing off action and the grant of ad interim injunction in its favor. He relied upon the judgment of this Court in Century Traders v. Roshan Lal Duggar & Co. and Ors., . Counsel for plaintiff has submitted that it had paid proper court fee in this case and cited Fenner India Ltd. v. Salbros Enterprises Pvt. Ltd., in support of his argument but he submitted that in case the court fee is found deficient, the plaintiff will make it good as and when asked by the court.

10. The suit is filed for passing off action. Briefly it is alleged that both the plaintiff and the defendants are manufacturing pharmaceutical medicinal preparation for the treatment of disease osteoporosis. Plaintiff is selling its product under the trademark ‘REFIRM’ since January, 2002. Defendant on the other hand adopted the trademark ‘REFORM’ and started selling its product from June, September or October, 2002. Both the parties have applied for registration of their respective trademarks. The suit is not on the basis of the infringement of the trademark. The suit is for restraining the defendants from passing off its goods sold under the trademark ‘REFORM’ which is phonetically and constructively similar to the trademark of the plaintiff ‘REFIRM’ as it is likely to cause confusion and deception in the mind of the customer and the dealers and even the medical practitioners could be deceived in believing that the medicinal preparation manufactured by the defendants had actually been manufactured by the plaintiff. The plaintiff has alleged that it had spent on advertisement about Rs. 10.00 lacs in the initial year of the product. Its product ‘REFIRM’ has acquired great reputation. The trademark ‘REFIRM’ is immediately associated with the product of the plaintiff. Adoption of the trade mark ‘REFORM’ by the defendants, therefore, may cause confusion and deception in the mind of medical practitioners, doctors issuing prescription and the pharmacist dispensing it that the defendants’ product had its origin from the plaintiff.

11. Before considering the case law cited by the parties, it is necessary to understand the principles of law which are to be borne in mind while deciding the question of deceptive similarity on the basis of an unregistered trademark in a passing off action. The Supreme Court in Cadila Health Care Ltd. (supra) had laid down the principles as under:–

“Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
(a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.
(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods or the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods, and
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case.”

12. Now the facts of the present case may be tested on the above principles. Both the pharmaceutical preparations/medicines, manufactured and sold by the plaintiff as well as by the defendants, are used for treatment for disease osteoporosis, a bone diseases. Both are meant to be used by the same class of purchasers/consumers; namely, the persons suffering from this disease, the chemists who sell the medicine, the medical practitioners and doctors who issue prescriptions to their patients or hospital and patients who buy medicines for their own use and the medical sales representatives who publicize the medicine or motivate the doctors and the medical practitioners in prescribing the medicines. Both these medicines are Schedule ‘H’ drugs which means that they can be sold by the chemists only on the basis of a prescription. Furthermore, the trademark under which the plaintiff is selling its pharmaceutical preparations is ‘REFIRM’ while the defendant has adopted trademark ‘REFORM’ for manufacture and sale of its medicines. The packing of the medicines of the plaintiff are at pages 1 and 2 of the document file and that of the defendants is at page-4 of the document file. The strip containing the tablet of the product of the plaintiff is at page-3 and that of the defendants is at page-5. Indeed if these packages and strips are put side by side for examination, both look different to a discerning eye but in passing off action test is not side by side examination. As noticed both the trademarks ‘REFIRM’ and ‘REFORM’ are visually constructively and phonetically resemble each other and there can be possibility of a mistake of identifying one for the other on the part of the doctors and nurses who are not immune from mistake and cannot be said infallible and the chemists and dispenser who may make bona fide mistake in reading the prescription of the doctor and supply the medicine of the defendant for the medicine of the plaintiff asked for and vise versa.

13. Such a confusion in medicine has to be avoided at all cost because the mistake may not only cause pecuniary loss to the manufacturer of the medicine but it may some time result detrimental to the health of a person. The doctors, medical practitioners, hospital administration or even the dispensers cannot be immuned from confusion or committing mistake while placing order for the supply of the medicine, while issuing prescription of the medicine to the patient, while actually administering the medicine to the patient. Observation of the Commissioner of Patent in R.J. Strasenburgh Co.’s case (supra) cited on behalf of plaintiff supports the contention of counsel for plaintiff that the two trademarks may cause confusion and deception in the mind of its consumers and medical practitioners alike.

14. The medicines are Schedule ‘H’ drugs and can be sold on prescription by the pharmacist may not be a valid defense to the claim of the plaintiff. In Cadila Healthcare Ltd. (supra) exactly similar arguments were advanced on behalf of the party accused of infringing the trademark. The medicines involved were sold under the tradename ‘Falcitab’ and ‘Falcigo1. Both were Schedule ‘H’ drug and so could be dispensed on prescription only. The Supreme Court rejected the argument advanced before it and observed as under:-

“It was further submitted on behalf of the appellant that although the possibility of confusion in a drug being sold across the counter may be higher, the fact that a drug is sold under prescription or only to physicians cannot by itself be considered a sufficient protection against confusion. The physicians and pharmacists are trained people yet they are not infallible and in medicines, there can be no provisions for mistake since even a possibility of mistake may prove to be fatal.
As far as present case is concerned, although both the drugs are sold under prescription but this fact alone is not sufficient to prevent confusion which is otherwise likely to occur. In view of the varying infrastructure for supervision of physicians and pharmacists of medical profession in our country due to linguistic, urban, semi-urban and rural divide across the country and with high degree of possibility of even accidental negligence, strict measures to prevent any confusion arising from similarity of marks among medicines are required to be taken.”
“The defendant concedes that physicians and pharmacists are not infallible but urges that the members of these professions are carefully trained to detect differences in the characteristics of pharmaceutical products. While this is doubtless true to does not open the door to the adoption by manufacturers of medicines of trade marks or names which would be confusingly similar to anyone not exercising such great care. For physicians and pharmacists are human and in common with the rest of mankind are subject to human frailties. In the field of medicinal remedies the courts may not speculate as to whether there is a probability of confusion between similar names. If there is any possibility of such confusion in the case of medicines public policy requires that the use of the confusingly similar name be enjoyed (See Lambert Pharmacol Ltd. v. Bolton Chemical Corporation DCNY, 1915, 219 F. 325.326.”
“Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons, not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Nothing the frailty of human nature and the pressure placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. It is not uncommon that in hospitals, drugs can be requested verbally and/or under critical/pressure situations. Many patients may be elderly, infirm or illiterate. They may not be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to them. This view finds support from McCarthy on Trade Marks, 3rd Edition, para 23.12 of which reads as under:–
“The tests of confusing similarity are modified when the goods involved are medicinal products. Confusion of source or product between medicinal products may produce physically harmful results to purchasers and greater protection is required then in the ordinary case. If the goods involved are medicinal products each with different effects and designed for even subtly different uses, confusion among the products caused by similar marks could have disastrous effects. For these reasons, it is proper to require a lesser quantum of proof of confusing similarity for drugs and medicinal preparations. The same standard has been applied to medical products such as surgical sutures and clavicle splints”.
15. The decisions of English Courts would be relevant in a country where literacy is high and the marks used and in the language which the purchaser can understand. While English cases may be relevant in understanding the essential features of trade mark law but when we are dealing with the sale of consumer items in India, you have to see and bear in mind the difference in situation between England and India. Can English principles apply in their entirely in India with no regard to Indian conditions? We think not. In a country like India where there is no single common language, a large percentage of population is illiterate and a small fraction of people know English, then to apply the principles of English law regarding dissimilarity of the marks or the customer knowing about the distinguishing characteristics of the plaintiffs goods seems to over look the ground realities in India. While examining such cases in India, what has to be kept in mind is the purchaser of such goods in India who may have absolutely no knowledge of English language or of the language in which the trade mark is written and to whom different words with slight difference in spellings may sound phonetical the same. While dealing with cases relating to passing off, one of the important tests which has to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product for another due to similarity of marks and other surrounding factors. What is likely to cause confusion would vary from case to case. However, the appellants arc right in contending that where medicinal products are involved, the lest to be applied for adjudging the violation of trade mark law may not be at part with cases involving non-medicinal products. A stricter approach should be adopted while apply the test to Judge the possibility of confusion of one medicinal product for another by the consumer. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself. Stringent measures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the product itself could have dire effects on the public health.”

16. The judgment of the Gujarat High Court in Ciba-Geigy Ltd. (supra) relied upon by the defendant which laid down to the contrary cannot prevail and be followed. The Gujarat High Court has held that the medicinal preparation of the plaintiff and the defendant were, being Schedule ‘H’ drug, were available to the consumers only on prescription of a registered medical practitioner, so the plaintiff was not entitled to an ad interim injunction as prayed under Order 39 Rules 1 & 2 CPC. That decides the first objection of the defendants.

17. From the pleading made in the plaint and the application by the plaintiff and the facts stated by the defendants in the reply to the application, clearly established that the plaintiff is prior in use of the trademark ‘REFIRM’ for sale of its medicinal product. The evidence which has been placed on record has prima facie established it. The Court in Century Traders (supra) has held that in an action for passing off in order to succeed in getting an interim injunction plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendants. It was further held that the proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is injunction alone or injunction, accounts and damages. If there is a likelihood of the offending trade mark invading the proprietory right, a case for injunction is made out.

18. Counsel for defendants emphatically argued that the word ‘REFORM’ is a common and general word and there cannot be any restriction on the use of this word. In the written statement and reply to the application, defendants have repeatedly alleged that the defendants were selling its medicinal product under a descriptive mark or generic mark which cannot cause any confusion. But even a descriptive or a generic mark may sometimes become a trademark of a product so as to associate it with a particular manufacturer. Even the defendants themselves have filed an application for registration of the word ‘REFORM’ as trademark for its product. Counsel for defendants has referred to the judgment of this Court in Bharat Enterprises (India) v. C. Lall Gopi Industrial Enterprises and Ors., 1999 PTC (19) 598 where it was held that the plaintiff has to prove that his mark has become so distinctive that the public started associating it with the plaintiff and further to prove that the offending trademark was likely to deceive and cause confusion among the consumer. The trademarks involved in the case were ‘Gopi Heat Pillar’ and ‘Belco Heat Pillar’, both the products were room heaters. The court observed that the expression ‘HEAT PILLAR’ may be taken to be a generic word and all those room heaters which were so designed like a pillar are using the word ‘Heat Pillar’, so this expression cannot be confined to the respondents and the respondent cannot have exclusive right to use Heat Pillar for their own product. It was further observed that there was phonetic distinction between the words ‘Belco’ and ‘Gopi’, therefore, there was no cause of confusion. For this reason, the ad interim application was dismissed. But the facts of the present case are distinguishable. In Cadila Health Care Ltd. (supra) the Supreme Court has held that greater care to be exercised while dealing with a passing off action relating to the medicinal products. In the present case though the meaning of the word ‘REFIRM’ and ‘REFORM’ may be different, but they are constructively and phonetically similar so as to cause confusion and deception in the mind of an unwary customer like hospital administration, medical practitioners, doctors, nurses and even the dispenser, chemist and druggist which may lead to the sale of the medicine of the defendants in lieu of the medicine of the plaintiff.

19. In Automatic Electric Ltd. (supra) the competing trademarks were ‘DIMMER DOT’ and ‘DIMMERSTAT. This Court held that the word ‘DIMMER’ may be a generic and descriptive word but since the plaintiff had been using the said trademark for a long period of time, user of deceptively similar trade mark by the defendants would necessarily cause irreparable loss and injury to the plaintiff. Second argument of counsel for defendants also is not tenable.

20. The third contention of counsel for defendants to my view will also not advance the case of the defendants. In the application it has been alleged by the plaintiff that the defendants are selling their medicinal preparation @ Rs. 35/- per strip of 10 tablets whereas the plaintiff was selling the same quantity of medicine for Rs. 99/-per strip of 10 tablets. According to counsel for defendants this is what was hurting the plaintiff as the medicine of the defendants was less expensive and of good quality. According to counsel for defendants, plaintiff’s Common Law right in the trademark ‘REFIRM’ were prejudicially effected because the defendants were passing off its inferior quality of product under a deceptively confusing trademark which is identical to the trademark of the plaintiff and thus not only causing monetary loss to the plaintiff but may cause injury to the health to an unwary person suffering from the disease os-teoporosis who consumes it. Plaintiff cannot maintain its claim in an action of passing off on the ground that medicinal products of its rival are being available at a cheaper price and it is being out-passed in the competitive market. It cannot maintain the suit for passing off action only if it has been able to show that the offending trademark is confusingly and deceptively identical to the trademark of the plaintiff so as to cause or is likely to cause confusion and deception in the mind of its consumers and traders, in this case the hospital administration, medical practitioners, nurses and the dispenser of the medicine who may assume that the goods of the defendant was manufactured by the plaintiff. Counsel for plaintiff has neither argued nor has based its claim for grant of injunction on the ground of the price of the goods of the defendant having been kept very low.

21. The fourth argument of counsel for defendant is that the proper court fee has not been paid. Plaintiff has maintained that the suit has been correctly valued and proper court fee has been paid but has submitted at the hearing that in case it is found that the court fee paid is deficient, the plaintiff undertakes to make it good. This is a question to be gone into and decided at appropriate stage and certainly not at the stage of grant of ad interim injunction application. The plaintiff cannot be denied ad interim injunction if it is entitled to it, till the question of court fee is decided. Since the defendant is raising this objection, proper court fee shall be determined in accordance with law at the appropriate stage. Therefore, principles of law laid down in the judgment of Fenner India Ltd. v. Salbros Enterprises Pvt. Ltd., (supra), relied upon by the plaintiff may be taken into consideration at that stage.

22. It has already been held that the offending trademark ‘REFORM’ is deceptively, constructively and phonetically similar and it may or is likely to cause deception and confusion in the mind of the consumers, the dealers and the medical practitioners who issue prescriptions and nurses who administer it to the patient. Such a confusion created by the trademark of the defendant ‘REFORM’ not only may cause monetary loss to the plaintiff but may also be harmful to the public health. The plaintiff, as such, has prima facie raised bona fide dispute and serious contention which needs investigation and trial. Balance of convenience is certainly in favor of grant of interlocutory injunction order stopping the sale of the medicine under the offending trademark rather than allowing the medicines to be sold under the offending trademark. Plaintiff may suffer irreparable loss and injury if the interlocutory injunction order is declined at this stage.

23. For the reasons stated above, the application is allowed and the defendant is restrained from manufacturing and selling its medicinal preparation under the trademark ‘REFORM’ and from doing any other thing as may be likely to lead to confusion or deception resulting in passing off the defendant’s goods as those of the plaintiff which are sold under the trademark ‘REFIRM’ during the pendency of these proceedings.

24. Before parting with, it may be noted that the observations made in the order are for the purpose of deciding interlocutory injunction application and will not influence the decision of the court at the final stage and it may be decided on its own merit.

25. Renotify before Joint Registrar on 15 January, 2004.