JUDGMENT 1. THIS is an application by the plaintiff in this suit for an injunction restraining the defendant, its servants and or agents from infringing the petitioner's trade mark 'aludrox' and in particular from using the offending mark 'al Hydrox' and/or from selling and/or offering and/or exposing or advertising for sale of any medicinal products under and/or bearing the mark 'al Hydrox'. 2. THE petitioner is the registered proprietor of the trade mark consisting of the word 'aludrox'. The said trade mark No. 10035 was registered on December 23, 1942 in respect of medicinal and pharmaceutical preparations in class 5. According to the petition the registration was renewed for a further period of 15 years from December 28, 1949 and is still valid and subsisting on the Register. The petitioner states in paragraph 3 of the petition that on July 21, 1951 Geoffrey Manners and Co. Ltd., of Bombay was duly recorded as the registered user in India of the petitioner's said trade mark. The petitioner goes on to state that since the year 1938 it has been continuously using the said trade mark 'aludrox' throughout India and has been selling large quantities of medicinal products under the mark 'aludrox' in Calcutta and elsewhere. Medicinal products of the petitioner under the mark 'aludrox' is sold both in tablet form and in liquid form. But the bottles in both cases have labels with the word 'aludrox' in bold figures. In paragraph 5 of the petition it is stated that the word 'aludrox' is set out in labels written at the top in bold, permanent and capital letters. The bottles containing the medicine in liquid form also contain the words 'amphoteric Gel' while on the bottle containing the tablets the words used are 'dried Aluminium Hydroxide Gel'. In paragraph 6 the petitioner states that it has recently discovered that the defendant has started manufacturing a similar medicinal preparation and has put the same under the mark 'al Hydrox' in the Calcutta market within the jurisdiction of this Court and complains that the said mark is a colourable and/or deceptive imitation of the petitioner's trade mark 'aludrox' and/or is so identical with it and/or so nearly resembling it as to he likely to deceive: or cause confusion in the course of trade. Complaint is also made that the defendant respondent is distributing and supplying through its Sales Department in Calcutta within the jurisdiction of this Court the said medicinal preparations under the mark 'al Hydrox' as will be evident from the affidavits of two dealers filed along with the petition and relied on by the petitioner. The defendant respondent's mark 'al Hydrox' appears on labels affixed to the bottles of medicine of the defendant-respondent's manufacture as also on the carton or cover thereof. On the label the word 'al Hydrox' is written in bold, permanent and capital letters. The words 'amphoteric Gel of Aluminium Hydroxide' also appear immediately below the word 'al Hydrox'. The plaintiff complains that the use by the defendant-respondent of the said offending mark 'al Hydrox' on the label of the bottle containing the medicine and on the carton thereof and sale of the medicinal products in Calcutta within the jurisdiction of this Court constitute an infringement of the petitioner's said registered trade mark. The plaintiff contends that the visual and phonetic resemblance of the two word marks are very close and confusingly similar and by the sale of the medicinal goods under the said offending mark 'al Hydrox' the defendant likely to mislead the purchasers into the belief that in purchasing the defendant's goods they are purchasing medicine of the plaintiff's manufacture. Further it is said that the possibility of confusion and/or deception is very strong because the medicinal goods under the conflicting marks belonging to the same class or description are sold in the same shop over the same counter without the necessity of any doctor's prescription therefor and are being purchased by the same class of customers who require them for identical purposes. The petitioner claims damages for loss of reputation assessed at Rs. 20,000/-. 3. IN paragraph 14 of the petition it is said that the petitioner discovered some time in March 1958, through its said registered user that the defendant respondent had been wrongfully using the offending mark 'al Hydrox' in Calcutta. Immediately thereafter the petitioner caused letters dated April 24, 1958, May 15, 1958 and June 7, 1958 to be written through their legal trade mark agents Messrs. Depenning and Depenning of Calcutta, calling upon the defendant respondent to desist from doing so. By letter dated July 11. 1958 the defendant refused to comply with such request. Immediately thereafter the petitioner caused letters dated April 24, 1958, May 15, 1958 and June 7, 1958 to be written through their legal trade mark agents Messrs. Depenning and Depenning of Calcutta, calling upon the defendant respondent to desist from doing so. By letter dated July 11. 1958 the defendant refused to comply with such request. Copies of these letters are annexed to the petition. The petitioner states that it was not possible to take steps earlier in view of the circumstances mentioned in paragraph 15 of the petition, viz. (a) that the petitioner carries on business and has its registered office in England, (b) the registered user of the petitioner who carries on business at Bombay had to make enquiries as to whether the medicinal products under the name 'al Hydrox' were being sold and/or used in the Bombay market, (c) upon the said enquiries being made, which took some time, the petitioner could not discover any sale or user of the trade mark 'al Hydrox' in the Bombay market, (d) the petitioner therefore had to instruct its agents Messrs. Depenning and Depenning for the purpose of filing a suit in Calcutta, (e) the entries relating to the trade mark No. 10035 in respect of 'aludrox' and certified copies thereof became available to the petitioner towards the end of December 1958 and (f) instructions to take proceedings in this behalf from England took some time to obtain. 4. THERE are two affidavits filed along with the petition. One is by one Abhi Prosad Sen and the other by one Barendra Nath Sreemani. Both these persons carry on business as Chemists and Druggists in different parts of Calcutta. They say that the plaintiff's name is well known as manufacturer of medicine 'aludrox' and both the deponents say that 'aludrox' products of the plaintiff have earned reputation for their excellence and high quality and enjoy an extensive sale in the market. Both these chemists also stock and sell 'al Hydrox' manufactured by Adcco Ltd., the defendant herein. Both kinds of medicines are said to be sold by them over the same counter in their shops. The deponent Sreemani states further that customers usually ask for the medicines and place orders therefor by or under their names or marks viz., 'aludrox' or 'al Hydrox'. Both kinds of medicines are said to be sold by them over the same counter in their shops. The deponent Sreemani states further that customers usually ask for the medicines and place orders therefor by or under their names or marks viz., 'aludrox' or 'al Hydrox'. One Mukunda Chandra Mukherjee, who has described himself as one of the directors of the defendant company, has affirmed an affidavit in opposition to the petition. The points taken in this affidavit are as follows: (a) The deponent was aware that 'aludrox', a medicinal product of the petitioner, was being sold in the market. (b) The mark 'al Hydrox' is not a colourable and/or deceptive imitation of the petitioner's trade mark 'aludrox' and is not identical with it or so nearly resembling it as to be likely to deceive or cause confusion in the course of trade. (c) The medicinal preparation 'al Hydrox' is an aqueous suspension of hydrated oxide of Aluminium and the respondent has been manufacturing the said product since 1947 and selling it throughout India since then. (d) The word 'al Hydrox' is neither visually nor phonetically similar to the petitioner's mark 'aludrox'. (e) The size and shape of the bottle used by the defendant is wholly dissimilar to that used by the petitioner for its said product. (J) The petitioner's medicine 'aludrox' is sold in the market in bottles only while the defendant-respondent's 'al Hydrox' is sold in the market in bottles covered by cartons In view of the above there is little chance of even of a lay man being misled as suggested in the petition. (g) The schedule in tabular form annexed to the affidavit will show that in the year 1948 a large number of orders for 'al Hydrox' were received from several customers from different parts of the country and duly executed by the defendant. In the schedule the total amount realised for the orders placed relating to 'al Hydrox' and other medicines are given in a lump. (h) The deponent relies on the orders, invoices and the relevant collection books to be produced at the hearing of the application. In the schedule the total amount realised for the orders placed relating to 'al Hydrox' and other medicines are given in a lump. (h) The deponent relies on the orders, invoices and the relevant collection books to be produced at the hearing of the application. (i) That under the garb of registration the petitioner's mark 'aludrox' which is not descriptive of the medicine Aluminium hydroxide which is in common use almost all over the world, the petitioner wants to monopolise the business in Aluminium hydroxide by its said mark which is illegal and wrongful. (j) The respondent's medicine 'al Hydrox' being a preparation of Aluminium hydroxide which is in common use all over the world, the respondent has a right to manufacture and sell the medicine under the said name and style. (k) The petitioner's product was not known in the Indian market in the year 1947 when the respondent started manufacturing and selling its products. (1) No injunction ought to be granted because the petitioner has waited for 12 years to institute the suit. The schedule to the affidavit shows the amount of the orders placed by doctors and chemists from different parts of the country mostly from Bihar, Assam, Murshidabad and Midnapore. On July 11, 1959 an affidavit in reply to this opposition was affirmed by one P. K. K. Nair. 5. MR. Talukdar, learned Counsel appearing in support of the affidavit stated that inspection had been taken of the orders mentioned in the schedule to the affidavit in opposition and he gave me the figures which he said related to the sale of the defendant's products 'al Hydrox'. The total of these as noted down by me does not exceed Rs. 200/ -. The correctness of this was not disputed by the learned Advocate for the respondent. The respondent has not produced any evidence to show that after the year 1948 it has been selling a medicinal preparation under the name 'al Hydrox' or the value of the orders placed and executed. 6. THE application is made under sec. 200/ -. The correctness of this was not disputed by the learned Advocate for the respondent. The respondent has not produced any evidence to show that after the year 1948 it has been selling a medicinal preparation under the name 'al Hydrox' or the value of the orders placed and executed. 6. THE application is made under sec. 21 of the Trade Marks Act which runs as follows:- "S. 21 (1) Subject to the provisions of sections 22, 25 and 26, the registration of a person in the Register as proprietor of a trade mark in respect of any goods shall, if valid, give to that person the exclusive right to the use of the trade mark in relation to those goods and without prejudice to the generality of the foregoing provisions, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either- (a) as being used as a trade mark, or (b) to import a reference to some person having the right either as a proprietor or as registered user to use trade mark or to goods with which such a person as aforesaid is connected in the course of trade." This section is almost a verbatim reproduction of S. 4 of the English Trade Marks Act of 1938 and decisions of English Courts under S. 4 will naturally have great persuasive value in guiding to a proper decision of the case before me. Looking at the containers used by the plaintiff and that used by the defendant along with its covering carton there can be no doubt or dispute that there is little, if at all, any similarity in their get-up. The similarity is limited to the mark or name under which the products are sold. Speaking for myself I have little doubt that it is easy enough to be confused by the resemblance of the two words 'aludrox' and 'al Hydrox' to each other. The similarity is limited to the mark or name under which the products are sold. Speaking for myself I have little doubt that it is easy enough to be confused by the resemblance of the two words 'aludrox' and 'al Hydrox' to each other. This is more so in our country because of the fact that English is not our mother tongue and any one can easily make a mistake in pronouncing one word so as to make it sound very much like the other. Even if the pronunciation be correct a little carelessness in the listener may make him think that 'al Hydrox' was asked for when 'aludrox' was wanted. 7. MR. Talukdar referred me to several decisions of the English Courts to show that where there is such a close phonetic resemblance the Court ought to grant an injunction in support of the case of the plaintiff. The first case cited by him is that of Aristoc Ltd. v. Ryste Ltd. and anr. (1) (1945) 1 All. England Law Reports p. 34. In this case the respondents had been carrying on business since 1929 as owners of a process for effecting invisible repairs to ladies' stockings which they called the 'rysta' process. In 1938 they filed an application to register the word 'rysta' as a trade mark in respect of the use they had theretofore made of the word to indicate stockings repaired by the said process. They subsequently amended their application stating that they intended to offer for sale stockings made by them bearing the name 'rysta' as opposed to stockings of other manufacturers repaired by them. The appellants, who were manufacturers of stockings and the owners of the mark 'aristoc', opposed the application on the ground that the word 'rysta' if used as a trade mark for stockings, so nearly resembled the word 'aristoc' already on the register in respect of the same class of goods as to be likely to deceive or cause confusion within the meaning of the Trade Marks Act, 1938, S. 12. Farwell, J. gave his decision in favour of the appellants but this was upset in appeal by the Court of Appeal. The House of Lords allowed the appeal. Farwell, J. gave his decision in favour of the appellants but this was upset in appeal by the Court of Appeal. The House of Lords allowed the appeal. The Lord Chancellor delivering judgment accepted as fair statement of the duty cast upon the Court in such a case as given in a passage in the dissenting judgment of Luxmoore, L. J. in the Court of Appeal to be found at p. 400 1943/1 A. E. R. 1937 All E. R. reading "the answer to the question whether the sound of one word resembles too nearly the sound of another so as to bring the former within the limits of the Trade Marks Act 1938, S. 12 must nearly always depend on first impression, for obviously a person who is familiar with both words will neither be deceived nor confused. It is the person who only knows the one word and has perhaps an imperfect recollection of it, is likely to be deceived or confused. Little assistance therefore is to be obtained from a meticulous comparison of the two words letter by letter and syllable by syllable pronounced with the clarity to be expected from a teacher of elocution. The Court must be careful to make allowance for imperfect recollection and the effect of careless pronunciation and speech on the part not only of the person seeking to buy under the trade description but also of the shop assistant ministering to that person's wants". All the Law Lords took the view that the word 'rysta' bore a close phonetic resemblance to the word 'aristoc' so as to lead to confusion. 8. IT is true that the application was one under S. 12 but the test shows how phonetic similarity is to be judged. The next case cited by Mr. Talukdar was that of Bale and Church Ltd. v. Sutton Parsons and Sutton and Astrah Products, (2) 51 R. P. C. 129. The plaintiffs in this case were manufacturers of a compound for cleaning gas cookers and the like. They had sold the compound under the name 'kleenoff' for many years and obtained registration of the word as a Trade Mark in part B of the Register. The defendants introduced the compound under the name 'kleenup' which was at first advertised as a hand cleaner and for general purposes, but was subsequently recommended and advertised for cleaning cookers. They had sold the compound under the name 'kleenoff' for many years and obtained registration of the word as a Trade Mark in part B of the Register. The defendants introduced the compound under the name 'kleenup' which was at first advertised as a hand cleaner and for general purposes, but was subsequently recommended and advertised for cleaning cookers. The plaintiffs commenced the action against the defendants seeking to restrain them from infringing their Trade Mark and from passing off and other reliefs. The action was tried by Clauson, J. who made an order in the usual form proceeding on the footing of infringement. The matter was taken up in appeal and all the learned Lord Justices agreed in rejecting the appeal. Romer, L. J. observed (at p. 141 ). "I have come clearly to the conclusion that the use by the defendants of this mark 'kleenup so nearly resembles the plaintiffs registered mark 'kleenoff' as to be calculated to cause goods sold under the mark 'kleenup' to be taken by ordinary purchasers for the goods of the plaintiffs. If must, I think, be borne in mind in this, as in other similar cases that the ordinary purchaser has only the ordinary memory, and that a man who has been accustomed to buy the plaintiff's material 'kleenoff' is quite likely to have forgotten the precise name which the plaintiffs have attached to their material, that is to say, the precise registered Trade Mark of the plaintiffs. But the one thing I should have thought he would remember is that it begins with the somewhat ridiculous word 'kleen'. What he might very well fail to remember is whether it ended with the word 'off' or with the word 'up'. So that if a man who was ordering the goods himself wanted to give a repeat order for 'kleenoff', he might very well make a mistake specially if he saw the word 'kleenup' in the shop where he was giving the order, and order that stuff believing it to be the plaintiffs' 'kleenoff'. But, apart altogether from the man who himself has given the order, and may have and probably has an imperfect memory, the fact has also to be borne in mind that goods are frequently ordered on the telephone, and are frequently ordered on behalf of the purchaser by a domestic servant. But, apart altogether from the man who himself has given the order, and may have and probably has an imperfect memory, the fact has also to be borne in mind that goods are frequently ordered on the telephone, and are frequently ordered on behalf of the purchaser by a domestic servant. In both these cases, even though the matter had been correctly given on the telephone, the receiver at the other end of the telephone might very well mistake 'kleenoff' for 'kleenup'. I think the same can aptly be said of the case before me. Mr. Talukdar cited several other cases but I do not think it necessary to take notice of them. In my view the phonetic resemblance is so great that confusion can easily result. On behalf of the respondent it was argued that the trade mark 'aludrox' was descriptive of the goods as mentioned in the petition itself representing Aluminium hydroxide and that the word 'al Hydrox' also represented aluminum hydroxide. It was contended that the word, Aluminium hydroxide, is a common English word and no one could have any property in it. There can be no dispute about this but the fact is that so far as the word 'aludrox' is concerned it has been registered under the Trade Marks Act and so long as the registration is effective the plaintiff has the exclusive right to use it. It may be open to the respondent to make an application for the removal of the word trade mark 'aludrox' from the register but so long as it stands, sec. 21 can be called in aid by the plaintiff against a person who uses a mark which phonetically resembles the plaintiff's trade mark 'aludrox'. I do not think that the case of Hindusthan Development Corpn. Ltd. v. Deputy Registrar of Trade Marks (3) reported in 59 C. W. N. 320 has any application to the facts of this case nor has the judgment in the case of Upendra Nath Brahmachary v. The Union Drug Co. Ltd., (4) in 43 C. L. J. 405 any bearing. There the name used was Urea Stibamina which was fancy name and observations of the learned Judge in that case do not help me at all in deciding the application before me. 9. Ltd., (4) in 43 C. L. J. 405 any bearing. There the name used was Urea Stibamina which was fancy name and observations of the learned Judge in that case do not help me at all in deciding the application before me. 9. INSPITE of the close phoenetic similarity of the words if the respondent had given any evidence of the fact worth considering that it had been manufacturing goods and selling the same under the name 'al Hydrox' from 1947 or 1948 I would not have granted any injunction pending the hearing of the suit but, if at all, only directed the respondent to maintain an account of its sales pending the hearing. It is surprising that although the respondent claims to have been manufacturing and selling the goods for the last 12 years it has made no attempt to bring before the Court any evidence to show the extent of its sales during these years. The only evidence, if it is evidence at all, which is given in schedule 'a' to the affidavit in opposition shows that about Rs. 200/- worth of goods were sold in three months from June 1948 to September 1948. What have been the sales of the defendant since then is not brought to the notice of the Court at all. There is no supporting affidavit from any independent third party to the effect that the defendant's product 'al Hydrox' has been in the market for several years past. The delay in bringing the application has, in my opinion, been properly accounted for in the petition and I see no reason to disallow the application because of it. I shall therefore make an order in terms of prayers (a) and (b) of the notice of motion. Costs of this application will be costs in the cause. The operation of the order will be stayed for a fortnight.