OPTREX INDIA LTD. v. OPTREX LTD. — 1989 DIGILAW 340 (BOM)

JUDGMENT S. K. Desai, J. (Oral) - This is an Appeal from the decision of the Single Judge in Notice of Motion No.2165 of 1987 which was a Motion taken out in Suit No.2436 of 1987. By the impugned order passed on January 10, 1989 the Motion was made absolute in terms of prayers (a), (b) and (c). The order in terms of prayers (a) and (b) was made immediately operative, but that in terms of prayer (c) was made operative from June 1, 1989. In pursuance of orders subsequently issued, this time has been extended. The Appellants-Defendants preferred this Appeal, but it has been admitted only as far as prayer (c) of the Motion is concerned and they have accepted the orders made against them in terms of prayers (a) and (b) of the Motion. To understand the purport of the three orders passed against the Defendants all these three prayers may be reproduced: "(a) That pending the hearing and final disposal of the suit the Defendants by themselves, their servants and agents or otherwise, howsoever, be restrained by an order and injunction of this Hon'ble Court from in any manner using in relation to any pharmaceutical and/or medicinal preparations and in particular any eye lotion or in relation to any goods falling in Class 3 and/or Class 5 of the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959, the mark OPTREX or any other mark deceptively similar to the Plaintiff's trade mark OPTREX so as to infringe the 1st Plaintiffs' trade mark OPTREX under registration Nos. 16866, 132020 and 132019; (b) That pending the hearing and final disposal of the suit, the Defendants by themselves, their servants and agents or otherwise, howsoever, be restrained by an order and injunction of this Hon'ble Court from in any manner using in relation to any pharmaceutical and/or medicinal preparations and in particular any eye lotion the mark OPTREX or any other mark deceptively similar to the Plaintiffs' trade mark OPTREX so as to pass off the Defendants' goods as and for those of the Plaintiffs; (c) That pending the hearing and final disposal of the suit, the Defendants by themselves, their servants and agents be restrained by an order and injunction of this Hon'ble Court from in any manner using the word OPTREX as part of their trading name and/or trading style and/or corporate name so as to pass off or enable others to pass off their goods and/or business as and for that of the 1st Plaintiffs." 2. Since the Appellants-Defendants have accepted the injunctions passed against them in terms of prayers (a) and (b) of the Notice of Motion, we take it, and this was expressly conceded, that the Defendants concede the ownership of trade marks in the word 'Optrex' to the Respondents-Plaintiffs under the registration numbers indicated in prayer (a) of the Motion. 3. The only contest in this Appeal, as stated earlier, is as regards prayer (c) of the Notice of Motion. Prayer (c), as it reads, admits of two implications. In the first place, it can be read in a fairly restricted manner so as to suggest that the Respondents-Plaintiffs are seeking an injunction against the Appellants-Defendants to the effect that the Defendants will not use the word 'Optrex' as part of their trading name, trading style and/or corporate name in such manner as to pass off or enable others to pass off the Defendants' goods as those of the 1st Plaintiffs. Read in the restricted manner, there would not be much difficulty in upholding the order of the Single Judge, since the injunction prayed for in the said prayer (c) is restricted to the user of the corporate name of the Defendants in such a manner as to enable the passing off of their goods as the goods of the 1st Plaintiffs. However, the learned Single Judge, as we understand him, has not read the injunction sought in this restricted manner and it appears to be the case of both sides that by the injunction he has granted he has directed the change of the corporate name of the Defendants by the date indicated under the belief which is made quite explicit in course of discussion in the judgment that user of the corporate name in the circumstances would per se be tantamount to passing off or enabling others to pass off the goods of the Defendants as those of the 1st Plaintiffs. 4. The Respondents No.1 - Plaintiffs No.1 are carrying on business as manufacturers, producers and distributors of medicinal and pharmaceutical preparations under the trade mark 'Optrex' under registration No.16866 in respect of pharmaceutical preparations falling under Class 5 of the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959. This was from May 31, 1943. They also applied for and obtained the registration of two trade marks of which the word 'Optrex' is an essential feature under registration No.132020 in respect of pharmaceutical preparations and goods falling in Class 5 and under registration No.132021 in respect of soaps, perfumes, etc. and goods falling in Class 3. They have used the trade mark all over the world including India in respect of ophthalmic products. We are also told across the Bar that the trade mark is used on the analog and digital thermometers manufactured or licensed by the 1st Plaintiffs. 5. Hoechst India Limited was incorporated as a joint-venture company between United Breweries Limited (an Indian Company) and Hoechst AG (a West German Company). One Vittal Mallya was the Chairman of United Breweries Limited and Hoechst India Limited. In 1976 and prior to February 9, 1983 the Respondent No.1-Plaintiff No.1-Company, namely, Optrex Limited UK, was the wholly owned subsidiary of Hoechst UK owned and controlled by Hoechst UK which in turn was owned and controlled by Hoechst AG. 6. On June 10, 1966 an Agreement was arrived at between Respondent No.1-Plaintiff No.1 and the said Vittal Mallya, of which the relevant portions are as under: "C. Mr. Mallya has (with the consent of OL) (that is, Optrex Limited. namely, Respondent No.1-Plaintiff No.1-Company) taken steps to incorporate a private company in India to be called Optrex India Ltd. ('Oil') of which the companies in which Mr. Mallya has (with the consent of OL) (that is, Optrex Limited. namely, Respondent No.1-Plaintiff No.1-Company) taken steps to incorporate a private company in India to be called Optrex India Ltd. ('Oil') of which the companies in which Mr. Mallya has substantial interest will be the majority shareholders, OIL proposes to manufacture and sell the said products under or with reference to the Trade Marks owned or controlled by OL and in accordance with OL's formulations. D. Under current Exchange Control and other Governmental Regulations ruling in India it is prohibited for OL to acquire or hold any shares in OIL but the parties hereto have agreed in principle that OL shall have the option of acquiring from the companies in which Mr. Mallya has substantial interest ('share holding companies') upto 50% of the share capital of OIL as and when Indian Exchange Control and other Governmental regulations permit OL so to do." Clause 2 of the Option Agreement read as follows: "2. In consideration of the permission granted by OL (that is, Optrex Limited, namely, Respondent No.1-Plaintiff No.1-Company) to OIL (that is, Optrex India Limited) to use its Trade Marks Mallya grants to OL the option to purchase from the share holding companies such number of shares in the capital of OIL as shall represent 50% of the issued voting share capital of OIL from time to time." 7. This was then the genesis of the Appellants - Defendants. It may be mentioned that after the date of the aforesaid Agreement the Respondent No.1 - Plaintiff No.1 - Company never called upon the said Vittal Mallya or his companies for purchasing 50% of the issued voting share capital. 8. In pursuance of the aforesaid Option Agreement, as we may call it, on October 27, 1976 the said Vittal Mallya made an application to the Registrar of Companies for availability of names under Section 20 of the Companies Act, 1956. As stated in the said application, a letter dated November 17, 1976 addressed by the Respondent No.1-Plaintiff No.1 - Company directly to the Registrar of Companies, State of Jammu and Kashmir, followed and this letter gave consent to the use of the word 'Optrex' as part of the corporate name for the company which was proposed to be incorporated by the said Vittal Mallya in the State of Jammu and Kashmir. Mr. Mr. Nariman appearing for the Appellants-Defendants has emphasised that this was an unconditional consent and not made dependent upon any event or limited in point of time. On June 10, 1977 the Appellants were incorporated in the State of Jammu and Kashmir with their original name "Optrex India (Pvt.) Ltd." which was subsequently altered to their present corporate name of Optrex India Limited. We are not concerned with the shareholdings of the said company save to reiterate that at no point of time was any part of the shareholders' capital subscribed to by the the 1st Plaintiffs nor did they subsequently exercise the option given to them by the Clause 2 herein above set out. This was followed by a letter dated June 24, 1977 by one A. D'Souza writing on behalf of the Appellants-Defendants to the Managing Director of Respondent No.1-Plaintiff No. 1 : conveying the necessary information. 9. On December 22, 1977 a Registered User's Agreement was entered into between the Respondent No.1 Plaintiff No.1-Company and the Appellant-Defendant-Company by which the 1st Plaintiffs, as the proprietor of the trade marks, granted to the Appellants the right to use the trade marks in respect of Optrex Eye Lotion and Famel Cough Syrup as therein mentioned. Clauses 2, 6 and 11 of the Agreement are somewhat material and may be set out: "2. The Agreement shall continue in force for an initial period of 5 (Five) years and thereafter shall continue for an indefinite period subject to determination by either party giving to the other 6 (Six) months notice in writing to that effect." "6. The User (that is the Appellants-Defendants) hereby acknowledges that the proprietor is the sole and rightful owner of the said Trade Marks and will not at any time hereafter either directly or indirectly challenge the Proprietor's rights thereto or the validity and distinctiveness thereof in relation to the Proprietor's goods and the User further agrees and undertakes that after termination of this Agreement in any manner whatsoever will not use or permit others to use the Trade Marks or any of the Trade Marks or any other mark or marks which might be confused therewith." "11. On the termination of this Agreement the User shall cease to manufacture the products or use any labels bearing the name and Trade Mark of the Proprietor or any Trade Mark labels only different in colour therefrom." 10. On the termination of this Agreement the User shall cease to manufacture the products or use any labels bearing the name and Trade Mark of the Proprietor or any Trade Mark labels only different in colour therefrom." 10. The period of five years provided under the Registered User's Agreement came to an end on December 22, 1982, but as provided therein the Appellants-Defendants continued to user of trade mark 'Optrex' in respect of the eye lotion manufactured by them till much later when a notice of termination of the Agreement was given to them as provided under the Agreement. 11. In February, 1983 Boots Limited UK acquired the Respondent No.1-Plaintiff No.1 - Company from Hoechst UK. The Respondent No.2-Plaintiff No.2 is obviously the Indian associate company of the said Boots Limited UK. 12. On May 30, 1986 the Secretary of the Respondent No.1-Plaintiff No.1-Company addressed a letter to the Chairman of the Appellant-Defendant-Company giving notice that the Agreement dated December 22, 1977 would stand terminated with effect from December 25, 1986 and that the Appellants should cease from using the trade marks thereafter. A copy of this notice is to be found at Ex. 'B' to the Plaint and at page 96 of the compilation before us. There is no reference in the notice to the Appellants being required to cease or desist from using their corporate name. This omission was rectified on December 12, 1986 when the Attorneys on behalf of the Respondents-Plaintiffs addressed a letter to the Appellants-Defendants making various requisitions and by requisition No.5 Defendants were called upon to desist from using the name 'Optrex' as part of their business name, trade name or trading style. By requisition No.6 the Defendants were called upon to take steps under the Companies Act, 1956 to change their corporate name by deleting therefrom the word 'Optrex'. On December 31, 1986 the Defendants' Patent and Trade Marks Attorneys replied to this letter whereby to stand of the Defendants was clearly indicated. This letter made it clear that as far as the Appellants were concerned, they would cease using the trade mark 'Optrex' and were taking necessary steps to stop the said trade mark on their products. However, it was indicated that this might take some little time, but assurance was given that necessary steps were being taken that behalf. This letter made it clear that as far as the Appellants were concerned, they would cease using the trade mark 'Optrex' and were taking necessary steps to stop the said trade mark on their products. However, it was indicated that this might take some little time, but assurance was given that necessary steps were being taken that behalf. However, as far as the second aspect of the requisitions was concerned (requisitions 5 and 6), which pertained to the use of the word 'Optrex' in the corporate name of the Defendants, it was the stand of the said Attorneys that the 1st Plaintiffs were not entitled to call upon the Defendants to stop using the word 'Optrex' in their corporate name or take any action relating to the change of the corporate name. The fact that the 1st Plaintiffs had given irrevocable consent to the Registrar of Companies for such name was sought so be emphasised. 13. In point of time this letter dated December 31, 1986 had been preceded by a Trade Mark Agreement entered into on December 26, 1986 between the Respondents-Plaintiffs for use or trade mark 'Optrex' by the 2nd Plaintiffs in India. We are not concerned with further correspondence which took place, but on August 19, 1987 the present Suit was filed and on August 31, 1987 a draft notice of motion was taken out. In the said Motion ad interim injunction was granted in terms of prayers (a) and (b). It is this Motion that ultimately came to be numbered as Notice of Motion No.2163 of 1987 which was decided by Pendse, J., on January 10, 1989. It is pertinent to point out at this stage that in the course of the judgment and order the learned Single Judge has made it clear that there was no dispute as regards grant of injunction in terms of prayers (a) and (b) of the Motion. Despite the concession made at the Bar, the Memo of Appeal proceeds to complaint against all three prayers granted by the Single Judge. Fortunately, this has not been persisted in the oral arguments during which complaint has been restricted to grants of prayer (c) of the Notice of Motion. 14. Despite the concession made at the Bar, the Memo of Appeal proceeds to complaint against all three prayers granted by the Single Judge. Fortunately, this has not been persisted in the oral arguments during which complaint has been restricted to grants of prayer (c) of the Notice of Motion. 14. One more fact may be mentioned at this stage, namely that apart from Optrex Eye Lotion the Appellants-Defendants manufacture and market several other products and formulations such as Clearine Eye Drops, Trimulan Suspension, Trexamide Eye Drops, Optragel Tabs, Trimulan Tabs, Trimulan D.S. Tabs Optragel Liquid, Optramol Tablets, Optramol Liquid, Dazolex Tablets, Dazolex Suspension, Ocuzol Drops and Ocuzol-C Eye Drops, with which the Respondents No.1-Plaintiffs No.1 are not concerned. We were told that the above products constitute 97% of the turnover of the Appellants-Defendants. In addition there is a licence from another Indian company under which the Appellants are manufacturing Syramin capsules. We are mentioning this aspect of the matter since it must have a bearing on the relief to be granted, particularly at the interlocutory stage. 15. Our attention has been drawn to the observations to be found in paragraph 5 of the impugned judgment which that the learned Judge was inclined to grant an injunction in terms of prayer (c) of the Notice of Motion on the basis of some implied covenants. We have considered the Agreement between the parties as also the correspondence. We do not find any obligation incurred by the Appellants-Defendants vis-a-vis the corporate name of a binding character and the injunction, therefore, in our opinion, cannot be sustained on the footing of a covenant to change the express name on termination of the user agreement. We do not find any express or implied covenant to that effect either in the letter of consent or the user agreement or in any other document. Merely because a court feels that a course of conduct is equitable is not enough to read a covenant or an agreement between the parties which in fact does not exist. 16. However, the Appellants-Defendants cannot certainly be allowed to use their corporate name in such a manner is to pass off or enable other to pass off their goods as those of Respondents No.1-Plaintiffs No.1 or licensees of the 1st Plaintiffs in respect of the trade mark 'Optrex'. 17. Mr. 16. However, the Appellants-Defendants cannot certainly be allowed to use their corporate name in such a manner is to pass off or enable other to pass off their goods as those of Respondents No.1-Plaintiffs No.1 or licensees of the 1st Plaintiffs in respect of the trade mark 'Optrex'. 17. Mr. Tulzapurkar appearing on behalf of the Respondents-Plaintiffs drew our attention to the manner in which the Appellants-Defendants had used the word 'Optrex' even after termination of the user agreement. We must make an immediate reference to such user as the Single Judge even in the impugned order has referred to it as well as to the contentions in the affidavit in reply and has characterised the conduct of the Defendants as not fully honest. We concur. 18. Upto the time the user agreement was in force, the eye lotion was designated as "Optrex Eye Lotion" and the word 'Optrex' in white words in horizontal blue diamond panels appeared at all the four side of the packet-carton. One of the four sides of this packet-carton panels indicated that the modication was made by the Appellants-Defendants under a licence from the Respondents No.1-Plaintiffs No.1. Substantially the same formate continued even after the termination of the user agreement and upto 31st August, 1987, but over and above the word 'Optrex' in white in the diamond panels on all four sides were added, though in very small letterings, "made by Optrex India Limited (that is, the Appellants-Defendants before us)" under the word 'Optrex'. The side panel did not suggest that the goods were not being made under a licence from the 1st Plaintiffs. We were also taken through the literature distributed along with the eye lotion and it is quite clear from this literature that there was an attempt to bring before the unwary purchaser the name of 'Optrex' and the possibility of confusion that this was the eye lotion or eye modication bearing the trade mark of the 1st Plaintiffs looms quite large on a visual examination of the manner of detailing the medicine even after the termination of the user agreement. Indeed, one may somewhat uncharitably comment that there was a clear attempt made to increase the possibility of such confusion on the part of the Appellants. We are told that the format has been changed after 1st September, 1987. Indeed, one may somewhat uncharitably comment that there was a clear attempt made to increase the possibility of such confusion on the part of the Appellants. We are told that the format has been changed after 1st September, 1987. Although the predominant colour combination remains the same, the diamond panel has been given a go-by to and substituted by rectangular panels. In these the word 'Optrex' does not even look as predominant or as glaring as before. We note that there is still a lady on the package/carton, though it may appear that the model has been changed. That would seem to make little difference. 19. At the hearing of this Appeals an offer was made by Mr. Nariman appearing for the Appellants-Defendants that a new package would be introduced and the eye lotion would be called "Eye-Klean Lotion" and the emblem of the lady using the lotion and bathing the eye with the help of a cup would be given a go-by too. Similarly, an offer was made that the colour of the package would be changed to anything other than blue or a shade of blue. 20. The position might conceivably have been different if immediately on termination of the user agreement some such packages-cartons-labels had been prepared by the Appellants-Defendants for their eye lotion. In the new packing suggested, although on the panels the words "Optrex India Limited" (that is, the Appellants-Defendants before us) would appear, if such a package had been adopted immediately on the commencement of the termination of the user agreement, it would have shown the total bona fides of the Appellants as contrasted with the attempt made by them during this period to retain the advantage they had whilst they were manufacturing Optrex Eye Lotion as licensees of plaintiffs No.1 during the pendency of the user agreement. 21. In this connection, reference can also be made to the improper claim made even as regards the trade mark in the affidavit in reply to the Notice of Motion, which has been commented upon by the Single Judge. We agree with the comment. 22. We are at the stage of considering proper interim reliefs to be granted to the claim of the Respondents-Plaintiffs. We agree with the comment. 22. We are at the stage of considering proper interim reliefs to be granted to the claim of the Respondents-Plaintiffs. At the stage of granting or confirming interim relief, that is, in addition to relief already granted as far as prayers (a) and (b) of the Notice of Motion, is concerned, and restricted to the corporate name of the Appellants-Defendants, we have to consider the position as existing in absence of a covenant necessitating change of corporate name, either express or implied. We hold that there is no such covenant as would justify as comprehensive order compelling change of corporate name for all purposes. It is also quite clear that the Appellants cannot be permitted to utilise the corporate name in such a manner to pass off or allow others to pass off their goods as those of the Defendants No.1-Plaintiffs No.1 or licence holders from plaintiffs No.1 using the trade mark 'Optrex'. 23. Now let us visualise the position qua eye lotions which may be manufactured with the trade mark 'Optrex'. If a purchaser goes to a chemist's shop or other shops, since this will be an over-the-counter sale preparation, asking for Optrex Washing Eye Lotion for eyes and there exists in the market, as is likely to exist, since we are told that the Respondents-Plaintiffs are only waiting for a clear decision from the court, an eye lotion with the trade mark 'Optrex' or bearing the trade mark 'Optrex' and is manufactured by the licence user of the Respondents No.1 - Plaintiff No.1, as also an eye lotion manufactured by Optrex India Limited, namely, the Appellants-Defendants herein, there will be clear confusion and one of the above products can be given or sold even quite innocently for the other. It is clear to us that if the corporate name of the Appellants, which in our opinion they are not compelled to change by reason of any covenant, is utilised on the label or package or carton of an eye lotion, such an eye lotion, either with an eye bathing cup or without a cup which can be utilised for cleaning and washing eyes, is likely to create confusion with Optrex Eye Lotion or eye drops or eye cleanser or any ophthalmic medicine bearing the trade mark 'Optrex' manufactured or sold by any user licensed by the Plaintiffs No.1. 24. 24. As stated earlier, we are at the stage of interim relief and whilst granting or confirming interim relief the court must be conscious that it has to balance the equities on either side. Whilst it must not deny to the Plaintiffs such injunction or interlocutory relief as would protect the plaintiffs' legitimate interests, such injunction cannot be so wide or excessive as to hurt the defendants unnecessarily. As stated earlier, once we come to the conclusion that there is no covenant compelling the Appellants-Defendants to change the corporate name, and this cannot flow from mere equitable considerations, then we have to only consider the possibility of deception or confusion. On that possibility although the general injunction in terms of prayer (e) of the Notice of Motion, as we have understood it in the first sense, must follow, the second injunction, if at all, must be restricted to eye lotions and opthalmic preparations only; but it being made clear that this cannot affect products such as Clearine Eye Drops made by the Appellants which bear the name of the Appellants in a modest manner on the package, carton or label. Of the 13 products indicated in paragraph 14 above, we find Clearine Eye Drops, Trexamide Eye Drops and Ocuzol-C Eye Drops being made by the Appellants. In our opinion, any absolute injunction against the Appellants must be restricted to eye lotions and eye baths and eye washes made by the Appellants', but excluding the above. Such preparation cannot be made bearing their corporate name, whether they are called eye lotions or eye cleaning lotions or eye bath or eye cleaners, since there will be clear confusion between such eye lotions made by the Appellants and the eye lotions bearing the trade mark 'Optrex' made by the Respondents No.2 - Plaintiffs No.2 as the registered licence user from the Respondents No.1 - Plaintiffs No.1 or any other subsequent licence user. However, there is no warrant for granting an injunction in respect of the other medicines, even though some of them may be ophthalmic medicines or eye drops for treatment of eyes. It is very pertinent to note that these eye drops are regular medicines to deal with eye conditions, whereas the eye lotion is generally a soothing antiseptic ointment or other preparation and is, therefore, more in the nature of preventive medicines rather than curative medicines. It is very pertinent to note that these eye drops are regular medicines to deal with eye conditions, whereas the eye lotion is generally a soothing antiseptic ointment or other preparation and is, therefore, more in the nature of preventive medicines rather than curative medicines. There is no warrant for extending the injunction to any other type of medicine or product made by the Appellants or to the products which they make under their distinct trade marks or under licence from another company. It is hoped, however, that they will use their corporate name in the usual manner on one of the panels or at the foot of the label and not in a blatant manner as they tried to do between December, 1986 and August, 1987 with regard to the eye lotion, for which period the attempt to publicise the word 'Optrex' is quite clear. 25. In the result, we set aside the portion of the order of the Single Judge to be found in clause 6 of the Registered User Agreement dated December 22, 1977 dealing with prayer (c) of the Notice of Motion. As far as the said prayer is concerned, the said portion of the order shall stand substituted by the following order: "The Defendants are hereby restrained from in any manner using the word 'Optrex' as part of their corporate name in such a manner as to pass off or enable others to pass off their goods as those of the 1st Plaintiffs;" and we make it clear that use of the corporate name in the usual manner on the medicines manufactured by the Appellants-Defendants, that is, in small lettering one one side of the panel of the package/carton or at the foot of the labels of such medicines, will not amount to a breach of the injunction. However, as far as the eye lotions or eye baths are concerned, the Appellants are restrained from using their corporate name on the labels or packages or cartons, because we are of clear opinion that user of such name on eye lotion or eye wash or eye bath will lead to definite confusion between the ophthalmic eye lotions made by the Appellants and all similar preparations bearing the trade mark 'Optrex' and licensed by Plaintiffs No.1. 26. We are told that Optrex Eye Drops manufactured by the Appellants No.1-Plaintiffs No.1 are also shortly coming on the market. 26. We are told that Optrex Eye Drops manufactured by the Appellants No.1-Plaintiffs No.1 are also shortly coming on the market. 27. As far as the other ophthalmic products, that is, apart from eye lotion, eye wash or eye drops, are concerned, we are of opinion that the Respondents-Plaintiffs are not entitled to an injunction in respect of eye drops or eye medicines bearing the trade mark 'Clearine', 'Ocuzol', 'Ocuzol-C' or 'Trexamide'. For the time being they are permitted to put their corporate name on such products, but the names should be put in the normal manner and not in any blatant manner so as to emphasise the word 'Optrex' in the name of the manufacture. 28. In our opinion, limiting the relief granted to the Respondents-Plaintiffs but directing the Appellants-Defendants not to use their corporate name on the ophthalmic products excluding ophthalmic products manufacture under the above three trade marks will sufficiently balance the equities and the legal rights of the parties at the interim stage. We make it clear to the parties that the Appellants must ensure that the corporate name which we have permitted the Appellants to use is not being used in such a manner to pass off their goods as manufactured under licence from the Respondents No.1-Plaintiffs No.1. We hope that good sense will prevail and the Appellants will utilise the corporate name in a modest and normal manner on other medicinal products. No further directions are necessary in the Appeal. Parties to bear their respective costs, In the view that we have taken, we are not of opinion that any statement of account or sales is required to be filed. If necessary, the same can be called for perusal at the time when the Suit is ripe for hearing. 29. Mr. Daruwala on behalf of the Appellants-Defendants points out that since 1981 the trade mark 'Loracode' is registered as the trade mark belonging to the Appellants which is registered for all pharmaceutical and medical preparations and ear, nose and throat conditions. The injunction which we have granted will not apply either to eye drops under the said trade mark also, provided there is no attempt to pass off the goods as the goods of the Respondents No.1-Plaintiffs No.1 or their registered users. The injunction which we have granted will not apply either to eye drops under the said trade mark also, provided there is no attempt to pass off the goods as the goods of the Respondents No.1-Plaintiffs No.1 or their registered users. In other words, the name 'Optrex' must not be so publicised as to suggest that the product is allied product with Optrex Eye Drops or lotion. 30. We direct the Associate to keep the green packaging suggested by Mr. Nariman appearing for the Appellants-Defendants in the record and marked 'X'.