JUDGMENT - S.M. JHUNJHUNUWALA J.:---The plaintiff has filed this suit against the defendant for permanent injunction restraining the defendant by itself, its servants, agents, distributors and representatives from infringing the plaintiff's trade mark 'Betaloc' registered under No.326230 dated June 16, 1977 in Class 5 in respect of pharmaceutical preparation by use of the impugned trade mark 'Betalong' or any other trade mark deceptively similar to plaintiff's said registered trade mark "Betalong" or any other mark deceptively similar to plaintiff's trade mark "Betaloc" in relation to pharmaceuticals preparations and form manufacturing, selling offering for sale or otherwise dealing in pharmaceuticals preparations bearing the trade mark "Betalog" or any other mark deceptively similar to plaintiff's trade mark "Betaloc" so as to pass off the defendants goods as and for the goods of the plaintiff or in any other manner whatsoever and for damages, costs and other reliefs as prayed for in the Plaint filed. The plaintiff has taken out the present Notice of Motion for interim injunction in terms of permanent injunction prayed for in the Plaint filed. 2. As averred in the plaint, the plaintiff, a public limited company duly incorporated and registered under the provisions of the Companies Act, 1956, is carrying on business of manufacture and sale of pharmaceutical and medicinal products. The plaintiff is proprietor of trade mark 'Betaloc' which is registered under No. 326230 dated June 16, 1977, in Class 5 in respect of pharmaceuticals preparation. According to the plaintiff, by virtue of registration of the trade mark 'Betaloc' under the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as "The said Act"), and its long, extensive and continuous use and reputation, the plaintiff has acquired proprietory rights in the said trade mark 'Betaloc' and is entitled to its exclusive use in respect of all kinds of pharmaceuticals preparations in Class 5 under the said Act and the Rules made thereunder. The defendant is also a limited company duly incorporated and registered under the provisions of the Companies Act, 1956. The defendant is also carrying on similar business in manufacture and sale of pharmaceutical and medicinal product. It is the case of the plaintitff that in or about the month of November 1987, the plaintiff became aware of the manufacture and sale of pharmaceutical product under the trade name 'Betalong' by the defendant. The defendant is also carrying on similar business in manufacture and sale of pharmaceutical and medicinal product. It is the case of the plaintitff that in or about the month of November 1987, the plaintiff became aware of the manufacture and sale of pharmaceutical product under the trade name 'Betalong' by the defendant. The plaintiff has been using the said trade mark 'Betaloc' in respect of drug for the treatment of hyper tension, angina pectoris, arrythanias, etc. the defendant's product is also for the treatment of hyper tension, angina pectoris, arrythanias, etc. the defendants's product is also for the treatment of hyper tension, angina pectoris, arrythanias, etc. On acquiring the knowledge about the defendant's said product, the plaintiff realised that its rights were being impaired by the defendant and as such the plaintiff through its trade mark attorneys served a cease and desist notice dated November 18, 1987 upon the defendant. The said letter was replied by the defendant vide its letter dated December 28, 1987. The defendant refused to comply with the requisitions made by the plaintiff in the said cease and desist notice. According to the plaintiff, despite the said cease and desist notice the defendant has been continuing the use of the trade mark 'Betalong' with a view to trade upon and benefit from the reputation and goodwill enjoyed by the plaintiff's trade mark 'Betaloc'. The plaintiff has averred that the trade and public in normal course are likely to believe that the defendant's goods also emanates from the plaintiff. It is the case of the plaintiff that the defendant has adopted the trade mark 'Betalong' with dishonest intention and the defendant has committed acts of infringement in adopting and using the similar trade mark 'Betalong' in respect of the similar goods. According to the plaintiff the said goods of the defendant bearing the trade mark 'Betalong' are being passed off and are likely, to be passed off as and for the well-known goods of the Plaintiff sold under the trade mark 'Betaloc. 3. According to the defendant, in the year 1986 the defendant decided to manufacture and launch a new product for controlling hyper tension and treatment of angina pectoris and arrythanias. For that product the defendant coined and selected the trade mark 'Betalong' and in the month of March 1986 the defendant applied for registration of that trade mark under the said Act. For that product the defendant coined and selected the trade mark 'Betalong' and in the month of March 1986 the defendant applied for registration of that trade mark under the said Act. The application of the defendant is filed under No. 451743 on March 31, 1986 and is still pending. The new product of the defendant was marketed and sold under the trade mark Betalong' and the first sale there of look place on December 29, 1986. According to the defendant. During the period between December 29, 1986 to May 31, 1986 the defendant has sold the said product under the trade name 'Betalong' of aggregate value of Rs. 2,90 265-64 and during the period from June 1. 1987 to May 31, 1988, the defendant has sold the said product under the said trade mark 'Betalong' of the aggregate value of - Rs. 3,57,994-30. During the period commencing from June 1, 1987 to May 31, 1988, the defendant has sold the said product under the said trade mark 'Betalong' of the aggregate value of -Rs.1,31,407-92ps. Since November 18, 1988, in view of the ad-interim order of injunction passed by this Court on October 26, 1988, the defendant has withheld the sale of the said product under the trade mark 'Betalong' It is the case of defendant that the said product 'Betalong' has been continuously marketed and sold all over India till November 18, 1988 and that the said product has been identified with the defendant and has acquired good reputation and goodwill. It is the case of the defendant that the said product 'Betalong' is a drug which falls under Schedule 'H' to the Drugs and Cosmetics Rules and as such can be sold only by a chemist holding appropriate licence under the said Rules and that too on the prescription of registered medical practitioner. The plaintiff's product 'Betaloc' is also a drug falling under-Schedule 'H' to the said Rules and as such the plaintiff's product 'Betaloc' can only be sold by a chemist holding appropriate licence under the said Rules and that too on the prescription of registered medical practitioner. 4. According to the defendant, the human heart allows blood vessels (arteries) as Beta Receptors. 4. According to the defendant, the human heart allows blood vessels (arteries) as Beta Receptors. Catecholomines which are a type of hormones act on these beta receptors and bring about a reaction which causes abnormal constriction of the heart as well as of the blood vessels resulting in hyper tension. the defendant's said product taken in appropriate doses blocks the said action of Catecholomines on beta receptors and keeps the heart and the blood vessels in normal condition. This blocking effect of the defendant's product is of a longer duration. The defendant, therefore, in coining the word trade mark for its said product took the word 'Beta' as representing 'beta receptors' and coined it with the word 'long' representing the longer duration for which it blocks or controls the action of the said hormones of beta receptors. It is the case of the defendant that the said trade mark ''Betalong' was coined and adopted by the defendant for its said product without reference to the plaintiff's alleged trade mark Betaloc. The defendant products is in the form of sustained release capsules, which means that the requisite quantity of the drug in requisite doses is released into the system over a period of 24 hours so as to ensure longer protection. This distinguishing feature of the defedant's product is well appreciated by the medical practitioner and as such the medical practitioner are not likely to be confused or deceived in selecting the right product by reason of the alleged similarity of the plaintiff's mark with that of the defedant's said marks. It is further the case of the defedant that there are a number of similar products in the market which are sold under the trade marks beginning with the word 'Beta'. Some of these trade marks are 'Betaloc' 'Betadure', Betanole 'Betacard', 'Betaspar' and 'Betazin. The defendant has denied that by virtue of long, exclusive and continues use the plaintiff's trade mark Betaloc is distinctive of or is exclusively identified with the plaintiff's goods. Although according to the plaintiff the annual sales of its product sold under the trade mark 'Betaloc' for the period from July 1, 1987, to June 30, 1988, aggregated to Rs.1,72,26,000/- the defendants has denied the correctness of the said annual sales figures of the plaintiff. Although according to the plaintiff the annual sales of its product sold under the trade mark 'Betaloc' for the period from July 1, 1987, to June 30, 1988, aggregated to Rs.1,72,26,000/- the defendants has denied the correctness of the said annual sales figures of the plaintiff. According to the defendant, its trade mark 'Betalong' is not similar to the plaintiff's trade mark 'Betaloc' and the 'Beta' being common in the trade, the plaintiff cannot have any monopoly or exclusive right to the use of 'Beta' being common in the trade, the plaintiff cannot have any monopoly or exclusive right to the use of 'Beta' or the right to prevent others from using the work. It is the case of the defendant that the letters 'loc' which from the other part of the plaintiff's trade mark ''Betaloc' do not convey any idea nor do they have any meaning in the English language. The pronunciation of the three letters 'loc' taken together is short and terse and the sound thereof is soft. As against these features of the plaintiff trade mark, the word long' which is the second part of the defendant's trade mark has a specific connotation, lenghty duration and the pronunciations of the word 'long' is lengthened and not terse. Thus, according to the defedant, taking defendant trade mark as a whole, its prominent feature phonetically is the lengthy pronunciation with nasal sound having to wang and connotation of a duration opposed to short ways and prominent feature phonetically of plaintiff's trade mark taken as a whole is the short and terse pronounciation lacking nasal should with no connotation. Hence, according to the defendant, the two trade marks can by no means be called similar or deceptively or confusingly similar and as such the plaintiff cannot in law have any grievance against or objection to the use by the defendant of its trade mark 'Betalong'. 5. Section 2 (d) of the said Act reads as under:- " 2. Definition and interpretation:- (d) "deceptively similar". A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles thatother mark as to be likely to deceive or cause confusion.'' 6. Mr. 5. Section 2 (d) of the said Act reads as under:- " 2. Definition and interpretation:- (d) "deceptively similar". A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles thatother mark as to be likely to deceive or cause confusion.'' 6. Mr. Tulzapurkar, the learned Counsel for the plaintiff, has submitted that for deciding the question of deceptive similarity, the courts have laid down that the following factors should be taken into consideration: "(a) The nature of the marks i.e. whether the marks are word marks or lable marks or composite marks i.e. both word and lable marks; (b) The degree of resemblance between the marks phonetically, visually as well as similarity 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 purpose of the goods of the rival traders; (e) The class of purchasers who are likely to buy the goods bearing the marks, their level of education and intelligence and the degree of care they are likely to exercise in purchasing the goods; (f) The mode of purchasing the goods or placing orders for the goods for the goods; and (g) Any other surrounding circumstances." 7. Mr. Tulzapurkar has further submitted that weightage to be given to each of the aforesaid factors depends on facts of each case and the same weightage can not be given to each factor in every case. In support of his submission, Mr. Tulzapurkar has relied upon the case of (Amritdhara Pharmacy v. Satya Deo Gupta)1, reported in A.I.R. 1963 S.C. 449, where it has been held that the said Act does not lay down any criteria for determining what is likely to deceive or cause confusion within the meaning of section 8(a) and section 10(1) and therefore every case must depend on its own particular facts and the value of the authority lies not so much in the actual decision as in the tests, applied for determining what is likely to deceive or cause confusion. In the case before the Supreme Court an application for registration of trade name 'Lakshamandhara ' in respect of medicinal preparation for the alleviation of various ailments was opposed by the proprietors of the trade name 'Amritdhara' which was already registered as trade name in respect of similar medicinal preparation of the opponents. In the case before the Supreme Court an application for registration of trade name 'Lakshamandhara ' in respect of medicinal preparation for the alleviation of various ailments was opposed by the proprietors of the trade name 'Amritdhara' which was already registered as trade name in respect of similar medicinal preparation of the opponents. On the question whether the trade name Laxmandhara was likely to deceive the public or cause confusion to trade, it was held that the question had to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man, over all structural and phonetic similarity of the two names 'Amritdhara and 'Laxmandhara' was likely to deceive or cause confusion. It was further held that the over all similarity of the composite words 'Amritdhara' and 'Laxmandhara' had to be considered having regard to the circumstance that the goods bearing the two names are medicinal preparation of the same description. After considering various authorities cited before the Supreme Court, the supreme Court had held as under:- "(9) We agree that the use of the word, 'dhara' which literally means current or stream is not by itself decisive of the matter. What we have to consider here is the overall similarity of the composite words having regard to the circumstance that the goods hearing the two names medicinal preparations of the same description. We are aware that the admission of a mark is not to be refused, because unusually stupid people, "fools or idiots", may be deceived. A critical comparison of the two names may disclose some points of difference but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with a similar name. The trademark is the whole thing the whole word has to be considered. The trademark is the whole thing the whole word has to be considered. In the case of the application to register 'Erectiks' (opposed by the proprietors of the trade mark 'Erector') Farwell, J., said in William Bailey (Birmingham) Ltd. 's Application, (1935)52 R.P.C. 136: "I do not think it is right to take a part of the word and compare it with a part of the other word; one word must be considered as a whole and compared with the other word as a whole... I think it is dangerous method to adopt to devide the word up and seek to distinguish a portion of it from a portion of the other word. " Mr. Tulazapurkar has also replied upon the case of (M/s. Hiralal Parbhudas v. M/s. Ganesh Trading Company other)2, reported in A.I.R. 1984 Bombay 218 where it has been held as under:- "In deciding the question of similarity of two marks, the following well established principles are to be observed:- (1) marks are remembered by general impressions or by some significant detail rather than by a photographic recollection of the whole, (ii) overall similarity is the touchstone, (iii) marks must be looked at from the first impression of a person of average intelligence imperfect recollection, (iv) overall structure, phonetic similarity and similarity of idea are important and both visual and phonetic tests must be applied, (v) marks must be compared as a whole, microscopic examination being impermissible, and (iv) the broad and salient features must be considered for which the marks must not be placed side by side to find out differences in design. In addition, the nature of the commodity, the class of purchasers, the mode of purchase and other surrounding circumstances must also be taken into consideration." 5. Reliance has also been placed on behalf of the plaintiff on the case of (Corn Products Refining Co.v. Shangrila Food Products Ltd.)3, reported in A.I.R.1960 S.C.142. In this case it has been held that in a deciding a question of similarity between the two marks the marks have to be considered as a whole. The Supreme Court has further held that in deciding the question of similarity between the two marks, the Court has to approach it from the point of view of a man of average intelligence and of imperfect recollection. The Supreme Court has further held that in deciding the question of similarity between the two marks, the Court has to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a manner, the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them. The Supreme Court has further held that the absolute identify of the two competitive marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. In the case before the Supreme Court respondent had applied for registration of the mark 'Glucovita' used with reference to biscuits manufactured by it. The appellant, who had been using the registered mark 'Gluocvita' with reference to his glucose with vitamins opposed the application under section 8(a) of the said Act. It was established that the applicants's trade mark had acquired a reputation amongst the buying public. Applying the said test the Supreme Court held that the commodities concerned was so connected as to make confusion or deception likely in view of the similarity of the two trade marks. It was further held that apart from the syllable 'co' in the appellants marks, the marks were identical. That syllable was not such as would enable the buyers in our country to distinguish the one mark from the other. Hence, the respondent's mark could not be registered. It is also held by the Supreme Court that mere existence of series of marks registered or unregistered having a common feature or a common syllable is by itself not sufficient. The applicant is required to prove that these series of marks have acquired a reputation by user in the market. The onus of proving such user is of course on the applicant who wants to rely on those marks. In the instant case, apart from the syllable 'ng' in the defendants 's mark, the two marks are identical. That syllable is not such as would enable the buyers in our country to distinguish the one mark from the other. The onus of proving such user is of course on the applicant who wants to rely on those marks. In the instant case, apart from the syllable 'ng' in the defendants 's mark, the two marks are identical. That syllable is not such as would enable the buyers in our country to distinguish the one mark from the other. Further, although the defendant has stated that there are many marks with prefix 'Beta' in existence and has also relied upon Indian Pharmaceutical Guide 1977 as also on Indian Pharmaceutical Guide 1990, the defendant has not been able to prove that the said marks are in use. The defendant has also not established that 'Beta' is common to trade. No instance of the other marks being in use has been given by the defendant not any invoice pertaining to availability of the product in the market has been relied upon by the defendant. 9. Mr. Tulzapurkar has next relied upon the case, viz., (In the matter of an application by Egg Products Ltd)4, reported in (1992)39 R.P.C. 155. In this case an application was made to register the mark "Egall". The said application was opposed by the proprietors of a trade mark "Egrol". The Registrar having refused the application, the applicants appealed to the Chancery Division which was decided by Sargent, J. In this case it has been held that in cases of alleged confusion, the interest of the public was more important consideration than the relevant rights of the parties. On the facts of that case, it was held that the first syllable 'Eg' could not be disregarded because it had some relation to the nature of the goods but that in such cases the totality of the two marks must be considered, that "Egall" was so similar to "Egrol" as to make confusion likely. The appeal was thus dismissed. 10. Mr. Tulzapurkar has rightly submitted that the question of likelihood of confusion had to be decided by comparison of marks as a whole. In support of his submission, Mr. Tulzapurkar has relied upon the case of (F.Hoffimann-La-Roche and Co. Ltd. v. Geoffrey Manners and Co. Pvt. Ltd.)5, reported in A.I.R. 1970 S.C. 2062. In that case the appellants had applied for registration of the trade mark "Protovit. In support of his submission, Mr. Tulzapurkar has relied upon the case of (F.Hoffimann-La-Roche and Co. Ltd. v. Geoffrey Manners and Co. Pvt. Ltd.)5, reported in A.I.R. 1970 S.C. 2062. In that case the appellants had applied for registration of the trade mark "Protovit. The application was granted and the appellant's mark was registered in Class V in respect of pharmaceutical preparation of human use and for veterinary use, infants' and invalids' foods. The appellants thereafter used that mark on mtalti-viumin preparations in liquid and tablet forms and their goods were sold under that mark since the year 1951. In January 1957, the respondents therein applied for registration of their mark 'Dropovit" in respect of medicinal and pharmaceutical preparations and substances. The application was registered and since the advertisement of the respondents' application escaped the notice of the appellant, the appellants did not opposed the registration. The appellants applied for rectification of the Register by removal therefrom of the respondents trade mark. The ground urged in support of the application was that the respondents" mark so nearly resembled the appellants' mark as to be likely to deceive or cause confusion. The appellants thereafter applied for amendment of the application and an additional ground was taken that 'Dropovit' was not an invented word. The application for amendment was allowed by the Registrar. The amended application was opposed by the respondents. The joint Registrar rejected the application for rectification holding that 'Dropovit' was not deceptively similar to 'Protovit' and that the word 'Dropovit' considered is a whole was not deceptive. The matter was taken in appeal to this court. The appeal was dismissed. The appellants then preferred an appeal under Letters Patent but the appeal was dismissed by the Division Bench of this Court. Before the Supreme Court, the appeal was brought by certificate from the judgment of this Court in the appeal. While considering the test for compression of the two word marks formulated by Lord Parker in (Pianotist Co.Ltd.'s application)6, (1906)23 R.P.C. 774, the Supreme Court has held as under: "It is also important that the marks must be compared as whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of word in the other case there is no sufficient similarity to cause confusion. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trademark." 11. Mr. Tulzapurkar has also relied upon the case of "Accutron" trade mark'm reported in 1966 R.P.C. 152. In that case an application to register the word 'Accutron' in respect of Rocks and watches, and 'Accularm' registered proprietors of the marks 'Accularm' registered in respect of wrist watches,was opposed by the registered proprietors of the marks 'Accurist' registered in respect of wrist watches, and 'Accularm' registered in respect of alarm clocks. The Registrar found that although the marks viewed side by side or compared phonetically were not confusingly similar, nevertheless there was a reasonable probability of confusion taking into account imperfect recollection, and the fact that both the applicants and the opponents marks would be used in very small letters on the faces of watches. Accordingly he refused registration. On appeal to the High Court the applicants contended that the opponents could not obtain any monoply in the word 'accurate' by means of their registration, and therefore distinctiveness of the opponents marks had to be found other than in first letters 'accu'. The High Court held: "i) that as the mark applied for and opponents marks were invented words, it was not proper to disregard such elements of the words which were deceptive and therefore the question of likelihood of confusion had to be decided by a comparison of the marks as a whole; ii) that on comparision of the marks it appeared that there was likelihood of confusion which the applicants who has not used their mark had been able to dispel by evidence. The application was therefore rightly dismissed." 12. In this connection, Mr. Patel, the learned Counsel appearing for the defendant, has submitted that where there are several marks with common prefix proper attention should be given to the termination of the marks. In support of his submission, Mr. Patel has relied upon the cases reported in (1978) R.P.C. 406. The application was therefore rightly dismissed." 12. In this connection, Mr. Patel, the learned Counsel appearing for the defendant, has submitted that where there are several marks with common prefix proper attention should be given to the termination of the marks. In support of his submission, Mr. Patel has relied upon the cases reported in (1978) R.P.C. 406. In that case, the applicant sought to register "Rhoumation in Class 1 in Part A of the register in respect of diagnostic laboratory reagents. Opponents objected on the ground that the mark did not meet the requirements of sections 9 and 10 of Trade Marks Act, 1938 and that the mark conflicted with their mark "Reuhumanostion" registered in Classes 1 and 5. It was, inter alia, held in that case that despite common prefix "Rheuma" there were special factors in that case which ruled out any likelihood of confusion, in particular the attention which laboratory staff would be likely to pay to the terminations of the marks when undering diagnostic preparations. 13. Mr. Patel also relied upon the case of (Aquascutum v. Cohen Wilks)1, reported in 1909 R.P.C. 651. In that case, the plaintiff who used "Aquascutum" as the name of garments sold them, brought an action to restrain the defendants from passing of garments not of the plaintiff's manufacture as and for garments of such manufacture. The plaintiffs therein complained to the use of the name "Aquatite" by the defendants. Holding that what the defendants therein was doing was not, having regard to the surrounding circumstances calculated to deceive, the action of the plaintiffs therein was dismissed with costs. 14. Mr. Pate has also relied upon the case in the matter of the application of (R.K. Dundas Ltd.)8, for the registration of a trade mark reported in 1955 R.P.C. 151. In that case Dundas Ltd. had applied to register the word "Dustic" for adhesives for industrial purposes. The said application was opposed by B.B.Coy Ltd. on the grounds (inter alia) that the word "Dustic"was not an invented word, being merely a misspelling of "Does stick", that the word has direct reference to the character or quality of the goods; and that it was liable to be confused with other registered marks and in particular with the mark "Bostik" registered by the opponents therein for certain classes of adhesives. It was stated by the applicants therein and admitted by the opponents therein that the word "Dustic" was derived from the first two letters of Dundas and the termination 'stic' or 'stik' commonly used in names of adhesives. The Asstt. Comptroller held that: i) the word 'Dustic' was an invented word and has no reference to the character or the quality of the goods; ii) it was not liable to be confused with opponents mark 'Bostik' regard being had to the number of marks for adhesives ending in 'stic' or a like termination; iii) that registration of the mark applied for should be allowed. The opponents in that case appealed to the Court and Justice Lloyd-Jacob, held that: i) "Dustic" was an invented word; ii) the decision of the Asstt. Comptroller to the effect that it was not liable to cause confusion was correct; iii) the appeal was dismissed. 15. Mr. Patel has further submitted that visually also the mark 'Betalong' is different from the mark 'Betalong'. He has further submitted that the syllable 'g' in the mark 'Betalong' trailed below and as such the mark 'Betalong is visually different than the mark "Betaloc'. 16. As held in the case reported in A.I.R. 1960 S.C. 142 (supra) the totality of the mark in required to be considered to hold as to whether or not the mark is deceptively similar. 17. In the instant case in deciding whether the word 'Betalong' is deceptively similar to the word 'Betaloc', each of the two words must, therefore, be taken as a whole word. The word are so similar that there is reasonable probability of confusion between the words both from the visual and phonetic point of view. It is not a matter for microscopic inspection, but to be taken from the general and even casual point casual point of view of a customer walking into a shop. As observed above in the instant case, apart from the syllable "ng'' in defendants' mark, the two marks are identical. Even if proper attention is paid to the termination of the marks, the likelihood of confusion being caused cannot be ruled out. The mark 'Betaloc' is too near and so similar to the mark 'Betaloc' as to make the confusion likely. In my view, Mr. Even if proper attention is paid to the termination of the marks, the likelihood of confusion being caused cannot be ruled out. The mark 'Betaloc' is too near and so similar to the mark 'Betaloc' as to make the confusion likely. In my view, Mr. Tulzapurkar has rightly placed reliance upon the case (Ranbary Laboratories Ltd. v. Dua Pharmaceutical Pvt. Ltd.)9, decided by B.N. Kirpal J on July 22, 1988 in I.A. No. 8916 f 87 in Suit No. 2614 of 87 in the High Court of Delhi reported in (1988)13 I.P.L.R. 161 in support of his submission that given phonetically the two marks 'Betaloc' and 'Betalong' are similar. In that case, the plaintiffs who were registered proprietors of the trade mark 'Calmpose' for medicinal preparation filed a suit for infringement and passing off against the defendants therein who commenced manufacturing and marketing a single medicinal injunction. In its reply the defendants therein contended that the two trade marks. 'Calmpose' and Calmprose' were phonetically different and that in any case since the medicine could be sold by chemists only on the written prescription of a registered medical practitioner, there could be little likelihood of deception or confusion arising by the use of the marks. While making absolute the ad-interim injunction, the Delhi High Court held that the marks 'Calmpose' and 'Calmprose' were phonetically similar. According to Mr. Patel, the said decision has no applicability to the facts of the present case. I see no reason why the said decision has no applicability to the facts of the present case. In my view in the instant case, phonetically visually and structurally both the marks are similar. Actual deception is not necessary to be proved. What is material in the circumstances in likelihood of deception. 18. Mr. Patel has submitted that since medicines could be sold by the chemists only on written prescription of a registered medical practitioner, there is no likelihood of confusion or deception by use of both the said marks. In support of his submission, Mr. Patel has relied upon an unreported decision of this Court in the case of (Parke Davis Co. anr. v. Onyx Labouratories Pvt. Ltd)10, in Suit No. 749/71 delivered by Vimadalal, J., on July 13, 1972. In support of his submission, Mr. Patel has relied upon an unreported decision of this Court in the case of (Parke Davis Co. anr. v. Onyx Labouratories Pvt. Ltd)10, in Suit No. 749/71 delivered by Vimadalal, J., on July 13, 1972. In that case a notice of motion was taken out be the plaintiffs who are a very well-known company manufacturing drugs for an injection restraining the defendants therein pending the hearing and final disposal of the suit, from using in relation to certain pharmaceuticals and medicinal preparations labels and cartons deceptively similar to the articles and cartons of the plaintiffs so as to pass off the defendants' goods and products as and for the goods and products of the plaintiffs, as well a for an interlocutory injunction restraining the defendants from printing and using the said labels and cartons so as to constitute an infringement of the plaintiffs' and using the said labels and cartons so as constitute an infringement of the plaintiffs' copyright in the artistic work contained in their correspondence. Mr. Patel has the nature of goods as also the mode of purchase are the factors which are to be taken into consideration in deciding as to likelihood of confusion or deception being caused by the use of the marks. He has further submitted that from the nature of the goods, both being medicines for treatment of heart ailment it is likely that customers would obtain prescription from a doctor and show it to the chemist before the purchase. In such a case, in the submission of Mr. Patel the chance of confusion is remote. In support of his this submission, Mr. Patel has put reliance on the case of F. Hoffimann-La Roche Co.Ltd. (supra). 19. Mr. Patel has also placed reliance on the case of (M/s. Johann A. Wulfing v. Chemical Industrial Pharmaceutical Laboratories Ltd. anr.)11, reported in A.I.R. 1984 Bombay 281, where the question of mode of purchase has been considered for deciding as to likelihood of causing confusion by use of the marks. In that case, the trade mark 'Complaining' of M/s. Johann A. Wulfing was registered for a medicinal and pharmaceutical preparation and was sold in the form of ampoules and tablets for the treatment of disorders. In that case, the trade mark 'Complaining' of M/s. Johann A. Wulfing was registered for a medicinal and pharmaceutical preparation and was sold in the form of ampoules and tablets for the treatment of disorders. M/s. Chemical Industrial Pharmaceutical Laboratories Ltd. who were carrying on like business filed an application for registration in their name the mark--- 'Ciplamina' Proposed to be used by them in respect of pharmaceutical and medicinal preparation. The said application was opposed on the ground that the proposed mark was deceptively similar to the said registered mark. On the facts of the said case it was held that there was no deceptive similarity between the said two marks. No person, be he a layman of average intelligence and imperfect recollection or a medical practitioner, is likely to confuse one for the other. The visual impression of the two words is not conductive to any such confusion. It was also held in that case that there was phonetic dis-similarity between the two words. So far as the instant case is concerned, as observed hereinabove, phoneticall, visually and structurally both the marks are similar. 20. While putting reliance on the case of (Sterwin A.G. v. Brocades (Great Britain) Ltd. and anr.)12, in 1979 R.P.C. 481, Mr. Patel submitted that doctors and pharmacists were trained to take very great care in their work and if in doubt, to check before acting and since the medicines are to be dispensed on medical preparations, there is no likelihood of any confusion being caused. In the Sterwin's case the likelihood of confusion being caused was held not to be there in relation to the two products as then marketed, viz. 'Danol' (for suppression of menstrual cycle in capsule form) and 'De-nol' (for ulcer in liquid form). When the defendants in that case wished to introduce a solid presentation of 'De'nol, the plaintiffs therein having become aware of the defendants' intention sought an injunction to restrain passing off on a quia timat basis. It was urged that if 'De-nol' was sold in a solid form there would be substantial likelihood of confusion with plaintiffs' products 'Danol'. The defendants therein while admitting the likelihood of confusion and deception sought analogues injuctive relief against the plaintiffs. It was urged that if 'De-nol' was sold in a solid form there would be substantial likelihood of confusion with plaintiffs' products 'Danol'. The defendants therein while admitting the likelihood of confusion and deception sought analogues injuctive relief against the plaintiffs. It was held: i) that in relation to the two products as presently marketed there had been no actual confusion and there was no likelihood of confusion as doctors and pharmaceutics were trained to take very great care in their work and if in doubt to check before acting' ii) that a real likelihood of confusion would only arise if the defendants produced and marketed a solid formulation of their product; iii) that the defendants might produce a solid formulation of 'De-nol' was, when the plaintiffs introduced their product, no more than a limited possibility. The plaintiffs' course of action with regard to choice of mark had therefore been reasonable. iv) Accordingly the plaintiffs were entitled to judgment, but, since there was not immediate market threat, this was an inappropriate case for injunctive relief. 21. Mr. Tulzapurkar has submitted that although the medicines are dispensed on medical prescription the marks being visually, phonetically and structurally similar, the likelihood of confusion being caused is greater. In support of his this submission, Mr. Tulzapurkar has rightly relied upon the case of (Burroughs Wellcome (India) Ltd. v. G.K. Sharma and King Scientific Research Centre)13, reported in (1989)14(2) I.P.L.R. 60. In that case the plaintiffs were the proprietors of the trade mark 'Septran' registered in 1969 and in continuous use since 1974 for a medicinal preparation in liquid and tablet form for treatment of respiratory and urinary ailments. The plaintiffs were selling 'Septran' tables in strips packing and these strips were in turn packed in cartons. The plaintiffs claimed to be the owners of copyright in 'Septran' strips and 'Septran' cartons as original artistic work on cartons under the Copyright Act in the year 1974. The defendant No. 1 was carrying on business in the name and style of King Scientific Research Centre at Kandivali, Bombay and also at Kota, Rajasthan. Defendant No. 2 King Scientific Research Centre was a firm carrying on manufacture and business of medical preparations at Kota Rajasthan with an office in Kandivali, Bombay. The plaintiffs found that the defendants were tablets under the mark 'Cetran' in strips and cartons identical with those of the plaintiffs. Defendant No. 2 King Scientific Research Centre was a firm carrying on manufacture and business of medical preparations at Kota Rajasthan with an office in Kandivali, Bombay. The plaintiffs found that the defendants were tablets under the mark 'Cetran' in strips and cartons identical with those of the plaintiffs. The suit was therefore filed by the plaintiffs for infringement and application for ad-interim injunction was therein made which was granted. The Court, inter alia, held that: i) the defendants mark was deceptively similar to plaintiffs ' registered trade mark and the get-up, colour scheme, etc. of the rival strips and cartons were identical; ii) that the defendants were using the infringing mark and deceptive cartons with a view to trading on the plaintiffs' reputation and their contention that there could not be any deception since the medicines needed doctor's prescription was not acceptable as the defendants' mark was phonetically similar to the plaintiffs' mark. 22. Mr. Tulzapurkar also relied upon the case of Ranbaxy Laboratories Ltd. (supra). In that case the Delhi High Court while holding that the marks 'Calmpose' and 'Calmprose' were phonetically similar also held that it was not unknown that the medicines were also available across the counter in the shops of various chemists and that the test to be adopted is not only of the doctor who is giving the prescription but was whether an unwary customer who went to purchase the medicine could make a mistake. In my view, in the present circumstances, doctors prescription factor has lost its importance since the reality of the situation cannot be ignored. In India scheduled drugs which are to be sold under doctors prescription are even sold without production of doctors' prescription and as such reduces the weightage that can be given to this aspect of the matter while considering the question of deceptive similarity. The Court cannot close its eyes to the existing circumstances and judicial notice of the factual aspects in existence has to be taken. In case where the fact of the medicines being sold on doctors prescription has been taken into consideration for deciding that there was no likelihood of confusion being created, the marks were not visually, phonetically and structurally similar. In case where the fact of the medicines being sold on doctors prescription has been taken into consideration for deciding that there was no likelihood of confusion being created, the marks were not visually, phonetically and structurally similar. In the instant case the two marks 'Betaloc' and 'Betalong' being visually, phonetically and structurally similar and so close to each other that it outweight the weightage to be given to the factor that the goods are scheduled drugs. The two marks are to be compared as a whole and the prefix 'Beta' cannot be ignored in the matter of such compression. 23. Mr. Patel has then submitted that even if the defence of the medicines being available on doctors prescription is ignored, the two marks are not similar. Mr. Patel has put reliance in the matter of application by (Bayer Products Ltd. v. In the matter of Opposition by A. Wander Ltd.)14, reported, in 1947 R.P.C. 125. In that case an application to register 'Diasil' for pharmaceutical preparations for internal and external use was opposed by the proprietors of mark 'Alasil' registered in respect of same description of goods. On the facts of that case, the Court of Appeal held that the likelihood of confusion between the marks if the applicant's marks were registered and used in respect of sulphadiazine preparations was too remote to justify refusing the registration. The possibility of a person confusing the opponents and applicants preparations on his own medicine table rested on the assumption of a number of coinciding circumstances, all of which were unlikely to occur simultaneously. In that case on the facts thereof, the Court took the view that neither of the initial syllable 'DI' or 'AI' has any characteristic or distinctive feature, anything forcefully or emphatically that will leave such an impression on the bearers mind as will entirely outweight the fact that the last two syllable of the words are identical and will enable it to remember the one word so clearly and distinctively that he would not be likely to confuse it with the other word. As observed earlier, in the instant case, the two marks are so close and so nearer and visually and phonetically and structurally similar that the likelihood of confusion is greater. 24. Mr. Patel has also relied upon the case of (Himalaya Drug Co. v. Hindustan Antibiotics Ltd. anr.)15, in Misc. As observed earlier, in the instant case, the two marks are so close and so nearer and visually and phonetically and structurally similar that the likelihood of confusion is greater. 24. Mr. Patel has also relied upon the case of (Himalaya Drug Co. v. Hindustan Antibiotics Ltd. anr.)15, in Misc. Petition No. 159 of 1987 decided on March 22, 1990 by Variava, J., of this Court. The petitioners in that case have been manufacturers and dealers in medicinal and phamaceuticals preparations and registered owners of trade mark 'Pilex', The said mark is used in respect of ayurvedic preparation for treatment of piles in the form of ointments and tablets. The 1st respondent filed an application for registration of the trade mark consisting of the word 'Prilex' in Class 5 in respect of antibiotic medicinal preparations. The petitioners opposed the said application. The Registrar ordered registration of 1st respondent's trade mark 'Prilex' and being aggrieved from the said order the said Misc. Petition by way of appeal was filed by the petitioners. In that case the registration of the trade mark 'Pilex' was allowed since the petitioners' product 'Pilex' is an allopathic product and the 1st respondents' product 'Prilex' as an allopathic product and that the 1st respondent's product being schedule-H drug only be available against prescription under the Drugs Rules. In the circumstances of the case it was held that there was no possibility of confusion and/or deception. 25. Mr. Patel has then submitted that the mark 'Betalong' has been honestly adopted by the defendants and as such there is no question of defendants being injuncted from using the said mark. Mr. Tulzapurkar has submitted that the alleged honesty in adoption of the mark Betalong' by the defendants is irrelevant in an action for infringement and passing off and the absence of an intention to deceive is not a defence. In this respect Mr. Tulzapurkar has relied upon paragraph 16-16 at page 357 of Kerly's Law of Trade Marks and Trade Names (12th Edition), which reads as under:- "Passing- off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence. Moreover, literal truth is not necessarily in conncent of misrepresentation. Moreover, literal truth is not necessarily in conncent of misrepresentation. If a man makes a statement which is true, but which carried with it a false representation and induces the belief that his goods are the plaintiff goods, he will be restrained by injunction. He cannot rely on the fact that his statement is literally and accurately true if, notwithstanding the truth it carries with it a false representation. Proof of fraudulent intention may, however, materially assist a plaintiff in establishing probability of deception." 26. Mr. Patel has then submitted that the totality of factors should be looked into and if the plaintiff has reasonable chance of success in the suit at the final hearing, then only the plaintiff should be granted the relief in the present Notice of Motion. In support of his this submission Mr. Patel has put reliance on the case of (Biddle Sawyer Pvt.Ltd. v. Lord's Homeopathic Laboratory)16, in Appeal 244 of 1989 decided by this Court on March 15, 1989, (Lentin and Mehta, JJ). In that case the appellants sought an injunction to restrain the respondents from using the trade mark 'Slimex'. The appellant's trade mark is 'Slimerax'. The appellants' products consisted of tablets used for the purpose of reducing obesity. The respondents' product is a homeopathic medicine which is available in liquid form. It is available in bottles. On the facts of that case it was held that the two trade marks 'Slimex' and 'Slimerax' did not appear to be deceptively similar and as such certain conditions like filing accounts every six months by the respondents were imposed since it was doubtful as to whether the appellants had reasonable chance of succeeding in the suit at the final hearing. So far as the facts of the instant case are concerned, as observed hereinabove, the two marks are visually, phonetically and structurally similar and the impugned mark of the defendant is so near and close to the registered mark of the Plaintiff that it is likely to cause confusion if the defendant is permitted to use the said mark 'Betalong'. On the facts of the case and looking to the totality of factors, I am satisfied that the plaintiff has reasonable chance of success in the suit as its final hearing. 27. On the facts of the case and looking to the totality of factors, I am satisfied that the plaintiff has reasonable chance of success in the suit as its final hearing. 27. Applying the three-fold tests of phonetic, visual and structural similarity and considering the various authorities cited and referred hereinabove, I am of the opinion that the plaintiff has made out a very strong prima facie case for grant of interiocutory reliefs as payed for in the Notice of Motion. 28. Mr. Patel has lastly submitted that the defendant is in the market since the year 1986 and the suit has been filed by the Plaintiff on September 30, 1988 and as such, the Plaintiff is guilty of gross delay in approaching this Court and therefore not entitled to any interim relief from this Court. According to Mr. Tulzapurkar, the plaintiff is not guilty of any delay in approaching this Court. Immediately on acquiring knowledge of the defendant marketing its product 'Betalong', the plaintiff had served notice upon the defendant on November 18, 1987 which was replied by the defendant on January 4, 1988 to which a rejoinder was given by the Plaintiff on January 28, 1988. Since there was no compliance, by the Defendant, a further notice by way of reminder was served upon the defendant on March 17, 1988 and the suit was thereafter -filed. Accordingly there is no delay on the part of the plaintiff in approaching this Court. Even assuming that there has been some delay on the part of the plaintiff in approaching this Court as contended by the defendant, firstly the question of delay has to be balanced against the likelihood of the plaintiff's ultimately succeeding in the action and where the strength of the plaintiff's prima facie case is very strong, the plaintiff's delay in filing to with hold the interiocutory injunction prayed for. As stated above, in my opinion, the plaintiff has made out a very strong prima facie case for grant of interlocutory relief and under the circumstances I hold that delay, if any, on the part of the plaintiff in filling the suit does on disentitle it to interlocutory relief on this Motion. Moreover, as held by the High Court at Delhi in the case of (M/s. Hindustan Pencils Pvt.Ltd v. M/s. India Stationery Products Co. Moreover, as held by the High Court at Delhi in the case of (M/s. Hindustan Pencils Pvt.Ltd v. M/s. India Stationery Products Co. another)17, reported in A.I.R. 1990 Delhi 19, even where there is an honest concurrent user by the defendant then inordinate delay of laches may defeat the claim of damages or rendition of accounts but the relief of injunction shold not be refused. This is so because it is in the interest general public, which is the third party in such cases, which has to be kept in mind. In the circumstances the Notice of Motion is made absolute is terms of prayers (a) and (b) The Defendant is directed to pay the costs of the Notice of Motion to the plaintiff. Order accordingly. -----