JUDGMENT - KARNIK D.G., J.: - This motion is taken out by the plaintiff for an order of injunction restraining the defendants from manufacturing, selling, advertising or dealing with in any medicinal or pharmaceutical preparation bearing marks or names : (i) Calpro, Calpro-Ze (ii) Neoserin (iii) Lkeran or Lucrin which are alleged to be deceptively similar to the registered trade marks belonging to the plaintiff namely : (i) Calpol (ii) Neosporin and (iii) Leukeran. 2. Though the defendant had applied for registration of the trade mark Neoserin, it has not been used it and no medicinal preparation by the said name has even been sold by the defendant as yet. It is also admitted by the parties that the names or marks Lkeran or Lucrin are also not used by the defendant at any time till date. However, the defendant is and has been using the marks Calpro and Calpro-Ze for many years and since prior to the year 1991. Therefore, the case for injunction in respect of the trade marks Calpro and Calpro-Ze would be required to be considered separately from other two marks names which have not been used at all. 3. The plaintiff is selling medicinal preparation in the name and style of "Calpol" for more than four decades. The medical preparation "Calpol" sold by the plaintiff is a single drug preparation containing paracetamol and is sold in the from of tablets as well as syrup/suspension. The plaintiff has registered the word "Calpol" as a trade mark under Trade Mark No. 230069 in class v on 13th July, 1965 and the registration has been renewed from time to time. A copy of the registration certificate is annexed to the plaint. The plaintiff has given the sales figures separately for Calpol tablets and Calpol padeatric syrup/suspension for the periods from the year 1971-72 onwards. The total sales up to date of "Calpol" are more than Rs. 314 crores. The plaintiff has established a considerable goodwill for its product "Calpol". 4. According to the plaintiff, the defendant is marketing medicinal preparations under the brand name "Calpro" and "Calpro-Ze" by infringing the plaintiffs trade mark "Calpol" and is passing of the defendants goods as that of the plaintiff. 314 crores. The plaintiff has established a considerable goodwill for its product "Calpol". 4. According to the plaintiff, the defendant is marketing medicinal preparations under the brand name "Calpro" and "Calpro-Ze" by infringing the plaintiffs trade mark "Calpol" and is passing of the defendants goods as that of the plaintiff. According to the plaintiff, the words "Calpro" and "Calpro-Ze" are deceptively similar to the plaintiffs trade mark Calpol and therefore there is possibility of deception of the people who want to buy plaintiffs medicine Calpol. According to the defendants, the words, "Calpro" and "Calpro-Ze" are not similar to the plaintiffs trade mark "Calpol". The defendants medicinal preparation "Calpro" is a vitamin preparation containing calcium, proteins and vitamin. The word "Calpro" is an invented word and the first three letters of that word viz "cal" denote that the product contains calcium. The next three letters of the word "pro" denote that the product contains proteins. The defendant has therefore invented the word "Calpro" by combination of the words calcium and protein and the defendant has no intention and never had any intention of infringing the trade mark of the plaintiff by passing of the defendants medicinal preparation as that of the plaintiff. In respect of the medical preparation by name "Calpro-Ze" the learned Counsel for the defendant submits that the product contain all the ingredients of Calpro plus zinc. The word" Ze" is a traditional short form of "zinc" and the invented word "Calpro-Ze" denotes a product containing calcium, protein and zinc. According to the defendant, both Calpol and Calpro Ze are invented words suggesting composition of their contents. Learned Counsel for the defendant submitted that incorporating short forms of key ingredients in the medicinal preparation while choosing a name for it is a common method adopted by almost each and every manufacturer. Learned Counsel produced for inspection of the Court three journals namely (1) Indian Pharmaceutical Guide (2) CINS Pharmacy Index and (3) Drug Today. Learned Counsel invited my attention to the index of names of the medicinal preparations given in the said three journals to substantiate his contention that almost every manufacturer uses the method of using short forms of key ingredients of a drug while naming a medicinal preparation. Learned Counsel invited my attention to the index of names of the medicinal preparations given in the said three journals to substantiate his contention that almost every manufacturer uses the method of using short forms of key ingredients of a drug while naming a medicinal preparation. Another method in naming a medicinal preparations to use a short form of the name of an organ of the body for treatment of by which the medicinal preparation is used. Learned Counsel cited that the word "Liv" is used in medicinal preparations directed to treat ailments of liver. He cited atleast 10 medicinal preparations namely Liv-52, Livergen, Livshreyas, Livage, Livel, Livernut-iron, Livial, Livo-luk, Livoerb, Livogen. Livomyn, Livotine, Livergen used for treating diseases of lever. Learned Counsel cited that the word "mycin" is commonly used in the name of medicinal preparations that contains a king of anti-biotics known as mycin-group. Similarly, the word "Cilin" is used in naming a medicinal preparations that contain antibiotic belonging to penicillin group and the word "Mox" is used in naming medicinal preparations that contain an antibiotic "Amoxiciline". It is not necessary to cite several illustrations given by the learned Counsel for the defendants to show that it is common practice of the trade to use short form of the organ of the body for the treatment of which the medicinal preparation is prepared or to use short forms of the key ingredients in it for choosing a name for a medical preparation. The defendant, it bona fide invented the words "Calpro" and "Calpro Ze" for the purpose of naming its medicinal preparation to denote that it because it contains calcium and protein. 5. Learned Counsel for the parties referred to several judgments of different High Courts which serve as a guide to determine whether a particular mark used by the defendant can be considered as a mark deceptively similar to the trade mark of mark of the plaintiff. They also list the factors which should be taken into consideration for deciding whether sale of a product with a particular name would amount to the defendant passing of its goods as the goods of the plaintiff. They also list the factors which should be taken into consideration for deciding whether sale of a product with a particular name would amount to the defendant passing of its goods as the goods of the plaintiff. A common test which can be found from the judgments cited at the bar to ascertain whether a name, design or packaging of the defendants product is deceptively similar to that of the plaintiffs is whether a common man of average intelligence and imperfect recollection is likely to believe that the defendants product was in fact a product of the plaintiff. The actual deceit is not necessary but only a possibility of deceit is enough. As this test are well settled, it is not necessary to refer to the judgments which lay down and apply this test. It would however be necessary to refer to the authoritative pronouncements of the Supreme Court in the case of (Cadilla Health Care Ltd. v. Cadila Pharmaceuticals Ltd.)1, reported in 2001(5) Supreme Court Cases 73. In that case, after exhaustively reviewing several cases cited before it, the Supreme Court laid down the factors which are generally to be taken into consideration in an action for passing of. In paras 35 and 36 of the judgment, the Supreme Court stated the factors which are to be considered in action for deciding the question of deceptive similarity. They are : (a) The nature of the marks i.e. whether the marks are word marks or label marks or compositive marks i.e. both words and label works. (b) The degree of resemblance between the marks, phonetically similar and hence similar 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 performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks they requires on their education, and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (f) The mode of purchasing the goods or placing orders for the goods. (g) Any other surroundings circumstances which may be relevant in the extent of dissimilarity between the competing marks. (f) The mode of purchasing the goods or placing orders for the goods. (g) Any other surroundings circumstances which may be relevant in the extent of dissimilarity between the competing marks. Weightage to be given to each of the aforesaid factors depending upon facts of each case and the same weightage cannot be given to each factor in every case." 6. The Supreme Court further laid down that where medicinal products are involved the test to be applied for adjudication the violation of the trade mark, law would not be on par with the cases involving non-medicinal products. A stricter approach should be adopted for applying the test to judge the possibility of confusion of the consumer. While confusion in the case of non-medicinal product may only cause economic loss to the plaintiff, confusion between two medicinal products may have disastrous effect and in some cases on life itself. In that connection, the Supreme Court drew a distinction between life saving medicinal preparations and other medicines. In para 33 of the judgment, the Court observed : "Stringent measures should be adopted specially where medicines are the medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the product itself could have dire effects on the public health." 9. Relying on the observations of the Apex Court in Cadillas case (supra), learned Counsel for the plaintiff submitted that while considering whether the name used by the defendant for its medicinal product is similar to the name of the already existing medicinal product of the plaintiff, the Court should take into consideration the disastrous effect which the confusion caused by the similar name is likely to have in the event of purchase and use of a wrong medicinal product. Consequences arising out of confusion of consuming a wrong medicinal product could be serious and would be disastrous in cases of life saving medicinal products or medicines of last resort. The consequences of confusion may be less serious in cases of confusion in the names of common medicines used for common illnesses like cold or medicines used for non-therapeutic use and used only as tonics. The consequences may be only economic in cases of use of deceptively similar names for consumer products. The consequences of confusion may be less serious in cases of confusion in the names of common medicines used for common illnesses like cold or medicines used for non-therapeutic use and used only as tonics. The consequences may be only economic in cases of use of deceptively similar names for consumer products. However, what would be the consequences of confusion arising out of use by the defendant of a name which is deceptively similar to the name of the plaintiffs product would be little relevance to find out whether the name given by the defendant for its products is similar or deceptively similar to the name of already existing product of the plaintiff. The similarity or dissimilarity in the name of two products does not depend upon the seriousness of the consequences arising out of deception of the consumer in buying and/or using or consuming one product for the other. Similarity or dissimilarity in name would have to be judged on its own, though the Court may more willingly grant an injunction on the ground of deceptive similarity in names in case of life saving medicinal produces. I would therefore, proceed to consider whether the names "Calpro" or "Calpro-Ze" are deceptively similar to the name "Calpol". 10. Learned Counsel for the plaintiff submits that there is a phonetic similarity in the words "Calpol" and "Calpro". No doubt, the first phonetic sound which emerges by uttering the first part word and the two words viz "Cal" is phonetically similar but, the second part of the two words viz. pol" and "pro" are dissimilar. Phonetic sound heard by utterance of the word "pro" is much harsher. Furthermore, in case of product Calpro Ze, there is a distinctive sound "Ze" with which the word ends making the two words phonetically dissimilar. I have also perused the packagings of the products which were handed in. The packagings are entirely different and there is no possibility of any visual confusion. Learned Counsel for the plaintiff did not even submit that the packagings are visually similar. The only similarity relied upon is the phonetic similarity. To my mind, there is little phonetic similarity and in any event is not such as is likely to cause confusion or deception of a common man of average intelligence and imperfect recollection. Hence, the plaintiff is not entitled to an injunction. 11. The only similarity relied upon is the phonetic similarity. To my mind, there is little phonetic similarity and in any event is not such as is likely to cause confusion or deception of a common man of average intelligence and imperfect recollection. Hence, the plaintiff is not entitled to an injunction. 11. There is yet another reason why I am not inclined to grant an injunction restraining the defendants from using names "Calpro" and Calpro-Ze. The defendant has been sellings its medicinal product "Calpro" since 1991. The medicinal product "Calpro Ze" was introduced sometimes in 1993. Both the products of the defendant are available in the market for more than 10 years. A feeble attempt was made by learned Counsel for the plaintiff to contend that the plaintiff was not aware that the defendant was marketing in India its medicinal products under the brand names "Calpro" and Calpro Ze. The submission has no merit. In para 13 of the plaint itself the plaintiff has admitted that the defendant had advertised its product "Calpro" in the April/May, 1979 issue of I.D.R. (Indian Drug Review) The plaintiff has contended that though the product was so advertised the medicinal preparation was neither available nor found in the market. The defendant has denied this statement and in para 7 of its affidavit in reply has given sales figures for the year 1994-95 up to date. They show that the sales of hundreds of thousands of capsules of "Calpro Ze" and bottles of Calpro syrups. The sales figures are in million of rupees. Beside, the advertisement the defendantss products are continuously listed in Index of medicines given at the end of different pharmaceuticals Journals available in the market. In each of the Journals which was produced for inspection covering the period from 1997 onwards, the defendants products Calpro and Calpro-Ze are shown in the index of products in each of the Journals. The plaintiffs products are also noted and advertised in the said journals. The plaintiff had advertised its products in the journals which also contain the index of defendants products Calpro and Calpro-Ze. In the circumstances it cannot prima facie be believed that the plaintiff was not aware of the defendants selling its medicines in the name of "Calpro" and Calpro Ze atleast since 1997. The defendants even sought to register its mark "Caltro" as a trade mark. In the circumstances it cannot prima facie be believed that the plaintiff was not aware of the defendants selling its medicines in the name of "Calpro" and Calpro Ze atleast since 1997. The defendants even sought to register its mark "Caltro" as a trade mark. The advertisement was issued in the trade journal dated 1st August, 2001 regarding the application made by the defendants for registration of the mark "Calpro". As per the learned Counsel for the plaintiff, it had filed opposition to the said registration before the Registrar of Trade Marks and an inquiry is pending. Despite such knowledge about the use of the mark "Calpro" by the defendants and also of the application for the registration of the Trade Mark the plaintiff kept quiet and has filed the suit only on 6th March, 2002. The plaintiff allowed the defendant to build market for "Calpro" and "Calpro-Ze" for number of years. For this reasons also, I am not inclined to grant interim relief of injunction pending the decision of the suit. 12. The position is different in respect of the other two marks namely Neoserin, Lukrin and Lkeran. The words Neoserin, appears to be phonetically similar to the words Neosporein. Furthermore, the mark Neosprin has thus not been used by the defendant. The marks Lucrin and Lkeran are also not used. Lukrin and Lkeran are used for treating cancer Lukemia which is a life threatening diseases. Learned Counsel for the plaintiff submits that its drug Leukeran is also used for treatment of Lukemia. As laid down by the Supreme Court in Cadillas case, strickter standards would have to be applied in respect of medicinal products used as medicines of last resorts or treatment of life threatening conditions where consequences of confusion could be disastrous. Coupled with the fact that the defendant has not yet commenced the user, I am inclined to grant injunction is respect of said marks. 13. For the reasons mentioned above, I pass the following order : The plaintiffs prayer for injunction restraining the defendant for selling medicinal products under the brand "Calpro" and "Calpro Ze" is rejected. The plaintiffs prayer for an injunction in respect of other medicinal products is granted in terms of prayer Clauses (c), (d), (e) and (f). 14. 13. For the reasons mentioned above, I pass the following order : The plaintiffs prayer for injunction restraining the defendant for selling medicinal products under the brand "Calpro" and "Calpro Ze" is rejected. The plaintiffs prayer for an injunction in respect of other medicinal products is granted in terms of prayer Clauses (c), (d), (e) and (f). 14. It is clarified that the Registrar of Trade Marks shall be entitled to decide the opposition of the plaintiff to the registration of the defendants marks on its own merits without it being influenced by the observations made in this judgment as they are only prima facie and made only for the purpose of consideration of interim relief. 15. Request made by the learned Counsel for the defendant to stay the operation of the order is rejected. 16. Motion is disposed of. 17. All concerned to act on a copy of the order authenticated by the Court Associate. Order accordingly. -----