JUDGMENT B. N. Srikrishna, J. - The suit has been filed by the Plaintiffs as a passing off action to restrain the Defendants from passing off the pharmaceutical preparation sold under the trade mark "Selmax" for the pharmaceutical preparation of the Plaintiffs under the trade mark "Sepmax". 2. Plaintiff No. 1 manufactures a pharmaceutical drug under the mark "Sepmax", which is marketed and distributed in India by the Second Plaintiff. Plaintiffs' product is used as antibiotic for treatment of lower respiratory, urinary or genital tract infections, otitis media, sinusitis, skin and would infections, some fungal and protozoal infections. Plaintiffs' product has been in the market since or about the year 1991, as evident from the relevant entry in the Indian Pharmaceutical Guide, 1991. Exhibits 'B' and 'C' show the considerable amount of sale and promotional expenses incurred by the Plaintiffs right from 1989. The plaintiffs came across an advertisement on 7th May, 1992 in the newspaper advertising the Defendants' product under the mark "Selmax" as First Line Therapy for Parkinsonism. The Plaintiffs obtained the product from a chemist in Bombay on 17th December, 1992 (Exhibit 'I - 1') and issued a Registered Notice to the Defendants on 19th December, 1992, calling upon them to cease and desist from manufacturing their product under the offending mark and made several requisitions upon them as contained in the said notice. The Defendants, by their reply dated 5th January, 1993, stated that they had filed a suit in the City Civil Court at Ahmedabad on 4th January, 1993 against the Plaintiffs and sought appropriate reliefs therein. The Plaintiffs lodged the present suit on 25th February, 1993 and have sought ad-interim order by the present draft Notice of Motion. 3. A reference to the plaint filed by the Defendants in Reg. Civil Suit No. 38 of 1993 pending before the City Civil Court at Ahmedabad would make it clear that the Defendants herein have contended there that the present Plaintiffs' mark is deceptively similar to their mark and is likely to cause confusion. 4. Curiously, when the matter was argued before this court, a contention was taken up by the Defendants that their mark is distinguishable on account of differences in packaging. The colour and manner of the packaging were sought to be highlighted as distinguishing factors. 4. Curiously, when the matter was argued before this court, a contention was taken up by the Defendants that their mark is distinguishable on account of differences in packaging. The colour and manner of the packaging were sought to be highlighted as distinguishing factors. The admissions made in the Ahmedabad suit were sought to be explained away as stated only with reference to similarity in word marks. It cannot be forgotten that the product in question is a pharmaceutical product, where word mark is of paramount importance. 5. Mr. Virag Tulzapurkar, learned counsel appearing for the Defendants, contended that the Defendants had made an application on 20.4.1992 before the Registrar of Trade Marks, Ahmedabad, for registration of their mark and that they are entitled to contend before the Registrar that they must get the benefit of Section 12(3) of the Trade Marks and Merchandise Act, on account of honest concurrent user of the mark. The Defendants' own case in the Ahmedabad suit is that they started manufacture of the product in question some time in March, 1992, and have been marketing it since 14th April, 1992. The Registrar is, of course, entitled to consider whether 6 days' user would entitle the Defendants to the benefit of honest concurrent user within the meaning of Section 12(3) of the said Act. I am, however, not impressed by the plea, at this stage. 6. It is contended by the Defendants that the drug manufactured and marketed by them is a scheduled drug, to be sold on prescription by Registered Medical Practitioner, and, hence, there is no probability of confusion or deception. I cannot be unaware of the fact that even in a prima urbis like Bombay, scheduled drugs are sold across the counter without prescription. I can also not be unmindful of the fact that, while one drug is a broadband antibiotic, the other is for treatment of a serious neurological decease, i.e., Parkinsonism. The disastrous consequences that could ensue if the Defendants' product is administered, by mistake, to an unsuspecting patient intending to buy the Plaintiffs' product, is mind-boggling. 7. Lastly, Defendants, vehemently contended that there was delay on the part of the Plaintiffs in that, though they came across the advertisement of the Defendants some time in May, 1992, they gave their first notice to the Defendants only some time in December, 1992. 7. Lastly, Defendants, vehemently contended that there was delay on the part of the Plaintiffs in that, though they came across the advertisement of the Defendants some time in May, 1992, they gave their first notice to the Defendants only some time in December, 1992. Delay, per se, is no ground for refusal of an order of injunction, unless it is such as would amount to acquiescence. I am not, prima facie, satisfied that there was any such delay on the part of the Plaintiffs as would amount to acquiescence. 8. One last issue, which needs to be considered, is as to why and how the Defendants hit upon the name "Selmax". The explanation is, to say the least, unconvincing, While Selegeline Hydrochloride might explain the adoption of the letters "Sel", there is no explanation for "Max". 9. Although a number of authorities have been cited at the bar, at this stage, I do not propose to refer to them. 10. The Plaintiffs have made out a case for ad-interim relief, and, at any rate, the unwary public is entitled to be protected. 11. Leave under Rules 147 and 148 of the High Court of Judicature at Bombay (O.S.) Rules, 1980 granted to the Plaintiffs to take out a Notice of Motion in terms of the draft handed in. Defendants waive service. Motion made returnable on 19th April, 1992. 12. Ad-interim relief in terms of prayer (a) of the Motion. 13. On the application of Mr. Tulzapurkar, learned counsel appearing for the Defendants, the operation of this order is stayed for two weeks. Defendants to give at least 48 hours' notice to the Plaintiffs, in case they intend to move the Appeal Court.