JUDGMENT Y.S. Jahangirdar, J. - The plaintiff who is dealing in manufacture and marketing of pharmaceutical preparations claims to be the owner of a registered trade mark by name "Lomotil". The trade mark was registered on 7th April, 1960 for medical and pharmaceuticals preparation falling in Class 5 of the Forth Schedule of the Trade and Merchandise Marks Act, 1959. Herein referred to as the said Act. It is alleged that on 9th April, 1995, the mark has been renewed for a period of 7th years and as such a mark is validly registered as a trade mark for marketing the plaintiff's products under the name and style of Lomotil, which is a drug for treatment of diarrhoea. The suit is filed marking a grievance of infringement of the said trade mark by the Defendant using the mark which is deceptively similar to the registered trade mark of the plaintiff. It is alleged that the Defendants are marketing drug on treatment for diarrhoea under the name and style "Slotil". The use of the said word being deceptively similar to the Plaintiff registered trade mark "Lomotil" should be prevented by issuing appropriate prohibitory orders. In such a suit the present motion is taken out by the plaintiffs for an order of prohibitory injunction as prayed therein. The motion is contested by filing affidavits on behalf of the Defendants. 2. Mr. Kadam for the Plaintiffs and Mr. Shah for Defendants have argued the motion at length. Mr. Kadam for the plaintiffs has mainly asserted that adoption of mark as "Slotil" by the Defendants/Company is ipsofacto fraudulent and once it is established that adoption of the mark is with fraudulent intention, further inquiry into the matter need not be undertaken and on the basis of the finding that the adoption of the mark is fraudulent, he is entitled to an order of injunction against the Defendants. In support of his contentions. Mr. Kadam has asserted that in the Defendants/Company one Dr. R. N. Goel along with his two sons are shown to be the promoters, when the Company was registered. In support of his contentions, he has brought to my notice Article of Associations signed by the promoters, when the company was incorporated. It is pointed out by placing reliance on the memorandum of association that family of Goel always retain all effective control over the management of the Company. In support of his contentions, he has brought to my notice Article of Associations signed by the promoters, when the company was incorporated. It is pointed out by placing reliance on the memorandum of association that family of Goel always retain all effective control over the management of the Company. Various clauses pertaining to control of Goel family in the Company are pointed out. This has been stressed and is referred to by Mr. Kadam, since it is asserted that Dr. R. N. Goel was the Managing Director of Plaintiff No. 2 for more than 25 years. He was in fact closely associated with numerous proceedings initiated against the persons adopting deceptively similar trade mark with that of the Plaintiff No. 2. It is also asserted that the promoters and the shareholders of Defendants/Company consist solely of Goel and his relations and after his relations with Plaintiff No. 2/Company are served in 1993, in March, 1995, the present company was floated with entire control of Goel family. This mark is actually put to use some time in March, 1997. Mr. Kadam asserts that it may be that just prior to actually launching the product with the impugned mark in the market, Mr. R. N. Goel, might have walked out of the Company, only to be substituted by other relation of Mr. Goel. The fact remains that the mark "Slotil" is conceived by Dr. Goel, who was intimately related with Plaintiff No. 2/Company, as his managing director and therefore, it must be held that adoption of the mark was fraudulent and on that ground alone injunction as prayed ought to be granted. 3. Mr. Kadam has also asserted that even on factual analysis "Lomotil" being a registered trade mark of the Plaintiffs/company, adopting mark "Slotil", being is so deceptively similar, is likely to cause a state of wonderment in the minds of the purchasers. Mr. Kadam submits that the mark of Defendants is deceptively similar to that of the Plaintiffs, verbally, phonetically and even in the manner in which is spelt. The said mark is likely to cause confusion in the minds of purchasers with imperfect and average intelligence, submits Mr. Kadam. He, therefore, contends that on these grounds, the Plaintiffs are entitled to an order of prohibitory nature as prayed for. Mr. The said mark is likely to cause confusion in the minds of purchasers with imperfect and average intelligence, submits Mr. Kadam. He, therefore, contends that on these grounds, the Plaintiffs are entitled to an order of prohibitory nature as prayed for. Mr. Kadam has placed reliance on the following judgments in supports of his contentions: (1) AIR 1970 SC 2062 . (2) AIR 1963 SC 449 . (3) AIR 1960 SC 142 . (4) And the decision of the House of Lords in Parker-Knoll Limited v. Knoll International Limited, 1962 Reports of Patent, Design and Trade Mark Cases, 265. 4. Mr. Shah for Defendants relying on the affidavits filed on behalf of the Defendants has asserted that the allegations of involvement of Dr. R.N. Goel in adoption of the mark is wholly irrelevant. He asserts that adoption of the mark "Slotil" was essentially connected with the motility of the bowels and since the drug indicates to achieve slowing of the motility, the marke was chosen as "Slotil". Mr. Shah states that Mr. R. N. Goel was not the present shareholder of the Company and therefore, the allegation is unfounded. He has also pointed out that both the drugs are dealing for the treatment of diarrhoea and there are number of other drugs in the markets, which makes use of the word "til", use of which has allegedly given rise the alleged deceptive similarity with that of the Plaintiffs trade mark. If that be so, asserts the learned Counsel, merely because the word is spelt in a similar fashion or last three words are similar and identical will not necessarily attract a finding of infringement of trade mark. On the facts of the present case the words which are relevant to come to the conclusion of infringement would be opening words of the marks, namely Lomo and Slo, and these words being distinctly different in pronunciation and in spelling and also phonetically, it cannot be said that the use of the said mark attracts infringement of the registered mark of the plaintiffs. The learned counsel further submits that both the drugs are schedule drugs and are available only on the prescription of the medical practitioner. The learned counsel further submits that both the drugs are schedule drugs and are available only on the prescription of the medical practitioner. If viewed from this angle, similarity of last three words in the drugs would put the Doctor to extra caution while prescribing the medicine, so that there is no cause of confusion in respect of the opening words of the drugs, which would be clearly spelt and written. And if this is the position then, it cannot be accepted that the person delivering the drugs on the prescription from the doctor would in any manner confuse by virtue of the alleged similarity in the marks. The learned Counsel for the Defendants has placed reliance on unreported judgment of the Division Bench of this court in Bombay Drug Pvt. Ltd. v. Janssen Pharmaceutical N.V. (Appeal No. 296 of 1980), in and judgment reported in case of Raghuvir Harischandra Salgaonkar v. Smt. Saraswati Pundalik Salgnaokar ( AIR 1984 Bom. 284 ). In case of Ciba-Geigy Limited v. Sun Pharmaceuticals Industries (1994 IPLR 43),: Unreported judgment in case of Kopran Chemical Co. Ltd. v. Sigma Laboratories (Notice of Motion No. 1309 of 1990 in Suit No. 1308 of 1990 dated 22nd April, 1993) in Notice of Motion No. 1309 of 1990 in by Variava, J. and judgment of this court in Reckitt and Coleman of India Ltd. v. Medicross Pharmaceuticals Pvt. Ltd. (Notice of Motion No. 1630/90 in Suit No. 1856/90.) in Relying on these judgments, the learned Counsel for the Defendants has submitted that mere similarity with the drugs or marks, which is registered is not enough, it must be deceptively similar and certain words are such which are common in use. In such a case the uncommon portion of such mark to decide whether the two marks are deceptively similar or not are relevant and in the instant case "Lomotil" and "Slotil" are words which are relevant for the decision as to whether marks are deceptively similar. 5. I have carefully gone through the authorities cited by both the Counsel and considering the submissions made on behalf of the parties. I have to consider whether the Plaintiffs have satisfied the established norms for grant of interim relief as prayed for and if so what relief should be granted in favour of the plaintiffs. 6. Firstly, dealing with the submission of Mr. I have to consider whether the Plaintiffs have satisfied the established norms for grant of interim relief as prayed for and if so what relief should be granted in favour of the plaintiffs. 6. Firstly, dealing with the submission of Mr. Kadam that the adoption of the mark being fraudulent, further inquiry into the matter must stop, if the same is found to be so and the injunction as prayed ought to follow. I am not impressed by the said submission. It must be stated that the intention in adopting a particular mark with a view to achieve a pecuniary and monetary benefits there from, may be relevant when the question of granting damages would arise. Even if it is assumed for a moment that Dr. Goel, who has instrumental in floating the company, had been working with Plaintiff No. 2 for sufficient number of years and thereafter has conceived the mark "Slotil", that by itself will not be sufficient for an order of injunction in favour of the Plaintiffs. The intention in adopting the mark atleast at an interim stage is irrelevant. A mark adopted innocently or mark adopted with lack of innocence, both would stand on a similar footing atleast at an interim stage, when the relief of injunction is sought for. Inquiry has to be concentrated on the issue as to whether the mark which is complained of is "deceptively similar", so as to warrant an order from the court, stopping the user of such mark. The word "deceptively similar" has been defined under the Act and definition reads as follows : Section 2(d) "deceptively similar": A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion : The emphasis in the definition is apparently and very clearly based on the similarity of the marks, and such similarity must be of the nature, which is likely to deceive or cause confusion. But one thing is absolutely clear that deceit and confusion are obviously used with reference to the minds of the purchasers. State of mind of the person adopting the mark, at this stage assumes very little importance and it is not possible to accept the contention of Mr. But one thing is absolutely clear that deceit and confusion are obviously used with reference to the minds of the purchasers. State of mind of the person adopting the mark, at this stage assumes very little importance and it is not possible to accept the contention of Mr. Kadam that if adoption of the mark is fraudulent and finding to that effect can be arrived at on the material as available further inquiry must be stopped. Mr. Kadam has placed reliance on a passage appearing in the judgment of Parker-Knoll Limited v. Knoll International Limited, referred to super. It is observed in the said judgment as follows: "Looking to the natural meaning of the words, I would make two observations; First, the offending mark must "so nearly resemble" the registered mark as to be "likely" to deceive or cause confusion. It is not necessary that it should be intended to deceive or intended to cause confusion. You do not have to look into the mind of the user to see what he intended. It is its probable effect on ordinary people which you have to consider. No doubt if you find that he did intended to deceive or cause confusion, you will give him credit for success in intentions. You will not hesitate to hold that his use of it is likely to deceive or cause confusion. But if the had no such intention, and was completely honest, then you will look carefully to see whether it is likely to deceive or cause confusion before you find him guilty of infringement. Secondly, "to deceive" is one thing. To "cause confusion" is another. The difference is this: When you deceive a man, you tell him a lie. You make a false representation to him and thereby cause him to believe a thing to be true which is false. Your may not do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You make a false representation to him and thereby cause him to believe a thing to be true which is false. Your may not do it knowingly, or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth, the whole truth and nothing but the truth, but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from the other pieces of truth known to him or because he may not even take the trouble to do so." 7. The observations as found in the judgment in the context of the facts may be useful as a guideline for scanning and scrutinizing the issue before the Court. As stated earlier, even if due credit of success as to the attempt to adopted a similar mark is given to the person conceiving a such mark an inquiry whether such a mark is deceptively similar, so as to warrant an interim order is not eliminated. Such inquiry is a must and without a finding that the mark complained of is deceptively similar so as to cause deceit or confusion, injunction cannot be granted. This is explicitly made clear by the provisions contained in the Act. Section 29 deals with the infringement of trade mark, which is reads as follows: "(1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of a trade mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) In an action for infringement of a trade mark registered in Part B of the register an injunction or other relief shall not be granted to the Plaintiff if the defendant establishes to the satisfaction of the court that the use of the mark of which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods in respect of while the trade mark is registered and some person having the right, either as registered proprietor or as registered user, to use the trade mark." Section clearly puts restriction on the court's power in no uncertain terms and clarifies that emphasis "an injunction or other relief shall not be granted to the Plaintiff, if the defendant establishes ..." the emphasis of the section is in negative fashion putting restriction on the Court granting interim order. Sub-section 1 makes its abundantly clear that what is to be highlighted is the fact whether the use of the mark complained of is likely to deceive or cause confusion. The interim in conceiving such a mark is not relevant, at least at an interim stage. As stated earlier by deceit or fraud in conceiving and adopting the mark, the Defendants stands to gain any pecuniary or monetary benefit shall be relevant at a stage when the issue of granting such relief in the nature of damages will arise. The submission of Mr. Kadam therefore that Dr. Goel, who was managing director of the Plaintiff No. 2 having conceived the offending mark and such conception must be held to be fraudulent, which by itself will entitle the Plaintiff to an order of injunction has to be rejected. In the light of the view which I have taken, I refrain from recording any finding whether adoption of the mark by Dr. Goel on the fact as stated was fraudulent or otherwise. The issue is specifically kept open for being tried at appropriate stage in the suit. 8. Second question that would then arise is whether mark "Slotil" is deceptively similar to the regd. mark of the Plaintiffs i.e., "Lomotil". Goel on the fact as stated was fraudulent or otherwise. The issue is specifically kept open for being tried at appropriate stage in the suit. 8. Second question that would then arise is whether mark "Slotil" is deceptively similar to the regd. mark of the Plaintiffs i.e., "Lomotil". While examining the said aspect, it has to be borne in mind the some of the words are so common in the medical and pharmaceutical field that no particular person can ever claim monopoly for the user of the same, as observed by the Division Bench in case of Bombay Drug Pvt. Ltd. (supra). "We may incidently observe as we have already indicated that in medicinal field the name of a drug may describe several features including the components and the elements for its user though this by itself would not be a governing factor to come to the conclusion that such names are likely to get confused. In the very nature of thing removal of parasites from the human body is the very basic characteristic and purpose of such drugs and therefore, merely because both convey the same idea in the sense, that both have the effective potentiality of removing or culminating the parasites such as variety of worms, this does not necessarily and conclusively mean that both the marks are capable of creating confusion. As stated, various features are to be taken into account in association with each other. From this point of view, also no deceptive similarity as such can be spelt out, though it is reiterated that having regard to the class of consumer even this will not occur. Admittedly there is no pictorial projection or any other item pertaining to the get up of the two marks and therefore, everything hinges on the bare spelling of the two words. All said and done, even though both convey the same idea, this by itself though relevant, would not be the conclusive and governing factor." If certain words are commonly used and such words cannot be said to be of the nature of which any of the parties can claim monopoly by the sheer common user of such words, then whether, the use of the words "til" by itself would create an impression that "Lomotil" and "Slotil" are one and the same. This has to be again considered from the point of view that both the drugs are scheduled drugs and barring an aberration, which cannot govern the interpretation of grant and refusal of relief in natural course of conduct, these drugs would always be available on prescription from medical practitioner and in view of the similarity of last words, the medical practitioner obviously will be careful in writing distinctive words clearly and distinctly so as to eliminate any confusion. The Defendants in their affidavit have given number of instance indicating existence of the drugs in the market, with suffix "til". Few of them can be mentioned for ready reference. Mexitil, Loftil, Peristil, Zemetil, Tobitil, Cortil, Stemitil and Otil. It therefore, follows that the words "til", which are the suffix may not necessarily be the deciding factor for coming to the conclusion that "Lomotil" and "Slotil" should be branded as deceptively similar marks. Mere similarity is not enought. Such similarity should be capable of causing a deceits or confusion in the mind of purchaser with ordinary intelligence. The stringency of such requirement also has to be tested in the light of the fact that the drug for which the mark was used is the scheduled drug available only on medical prescription. 9. Mr. Kadam while meeting arguments in rejoinder has asserted that merely showing that a drug with identical suffix exist in the market is not enough. The extent and actual user in proportion to the user of and by the Plaintiffs also must be established. I am afraid that at an interim stage, to require the Defendants to establish such an ingredient may not be justified. The inquiry at an interim stage is on issue of deceptive similarity, so as to cause in confusion. The Defendants have given instances that number of drugs having identical pronunciation, phonetic and could be said to be similar, but have never caused confusion would be sufficient while considering the entitlement of the plaintiffs for interim relief. Since, it would assist the Court in finding out whether the mark complained of is likely to cause deceive or confusion. Extent of user and circulation of the complained drug in the market is a principle which will apply at the final hearing of the proceedings. As observed by Variava J. in a judgment delivered by him in the case of Kopran Chemical Co. Ltd. v. Sigma Laboratories, (supra). Extent of user and circulation of the complained drug in the market is a principle which will apply at the final hearing of the proceedings. As observed by Variava J. in a judgment delivered by him in the case of Kopran Chemical Co. Ltd. v. Sigma Laboratories, (supra). 10. Therefore in the ultimate analysis the words, which be decisive "Lomo" and "Slo" and use of these words cannot be said to be deceptively similar to each other. The syllable comprising beginning of the two words are distinctly different and are differently pronounced. If this be so. I do not think that an injunction as prayed is warranted on the facts of the present case. Hence, considering in this light, no case for grant of injunction is made out by the Plaintiffs. The Defendants however shall maintain correct and proper accounts of the dealings, transactions and also profits earned from marketing drugs under the name and style of "Slotil" and shall submit the accounts every six months with the copy to the Plaintiffs. With these directions motion is dismissed. No order as to costs. Petition dismissed.