Judgment ( 1. ) THE Misc. Appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure is directed against the order dated 20-5-2006 passed in Civil Suit No. 85-A/2006 by the District Judge, Bhopal whereby plaintiff/respondents application filed under Order 39 Rules 1 and 2 of the Civil Procedure Code has been allowed. ( 2. ) THE plaintiff/respondent a company registered in the name of Alvin Will Cure Laboratories Pvt. Ltd. , dealing in the business of marketing various medicinal products, filed a suit against the appellants/defendants under Section 134 of the Trade Marks Act, 1999 (act for short ). It is alleged by the plaintiff that the defendants are infringing its registered trade marks BECOZEAL and VIN-Z by marketing their products with identical and or deceptively similar brand names BECOGEEL and WIN-Z and are passing off its registered trade marks by marketing the products with aforesaid identical and or with deceptively similar trade marks. Along with the said suit the plaintiff also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction against the defendants from marketing the products by using their registered trade mark. It is averred in the application for temporary injunction that as earlier the defendants were Directors in the plaintiff company, but, due to the fraud and cheating committed by them with the plaintiff company they were expelled from the plaintiff company, the defendants with malafide intention and with full knowledge about the trade marks of the products of the plaintiff company started marketing the products with identical or deceptively similar trade marks of the plaintiffs products and are causing irreparably injury to the well established reputation, goodwill and market of the plaintiff company. ( 3. ) THE defendants filed reply of the plaintiffs application for temporary injunction and stated that the products which the plaintiff is marketing is in the name of BECOZEAL syrup, BECOZEAL capsules and VIN Z. On the other hand, they are marketing the products with the trade marks AWP BECOGEEL and AWP WIN Z. It is further stated that the plaintiffs products are registered under drug Segment while their products are registered under the food Segment. It is also stated that there is much difference between the packings of the products of the plaintiff and that of the defendants. It is also stated that there is much difference between the packings of the products of the plaintiff and that of the defendants. It is also stated that there is clear difference in the spellings of the products which they are marketing and in the spellings of the products which the plaintiff is marketing. ( 4. ) THE learned District Judge after hearing the parties allowed the plaintiffs application for temporary injunction vide its order dated 20-5-2006. It held that though there is slight difference in the spelling used by the defendants for their products but they are having phonetic similarity to the extent to create confusion in the mind of the customers. The learned District Judge also observed that the defendants have not denied that they were earlier occupying the position of Director in the plaintiff company. It has also been held that the plaintiff company being prior user of the trade marks, the balance of convenience is in its favour. It has been further held that if using of the deceptively similar trade mark by the defendants is not restrained the plaintiff would suffer irreparable injury. Feeling aggrieved by the aforesaid order dated 20-5-2006 the defendants/appellants have filed this appeal. ( 5. ) SHRI Ajay Mishra, learned Senior Counsel for the appellants submits that the learned District Judge has ignored the material distinctiveness regarding the names of the products of the appellants and the respondent. He also submits that the names of the firms, the packings of the products being distinct, there is no similarity as has been observed by the Court below. He submits that the appellants products fall under the food segment while the respondents products fall under the drug Segment in the circumstances there is vast difference between the products. Relying on Section 133 of the Act read with Rules 23 and 24 of the Trade Marks Rules, 2002 (rules for short he contends that before commencing the marketing, advice was sought from the Registrar as to distinctiveness of its trade mark to ascertain whether any trade mark is on record which resembles the trade mark in respect of which the request is made. After the said advice being received in negative the marketing was commenced. In the circumstances, he contends that the Court below ought to have held that prima facie its trade marks are distinctive with the trade marks of the plaintiffs products. After the said advice being received in negative the marketing was commenced. In the circumstances, he contends that the Court below ought to have held that prima facie its trade marks are distinctive with the trade marks of the plaintiffs products. ( 6. ) SHRI Manoj Jain, learned Counsel for the respondent contends that the plaintiff respondent is prior user of the aforesaid trade marks and its trade marks are registered in the names as BECOZEAL and VIN Z. He submits that the defendants after being expelled from the plaintiff company with malafide intention applied for the trade marks which are identical with or deceptively similar to the trade marks of the products of the plaintiff company. He submits that the names of the products being deceptively similar the learned District Judge has rightly held that the plaintiff has prima facie case. The learned Court below having regard to the irreparable injury which would cause to the plaintiffs business and reputation has rightly allowed the plaintiffs application for temporary injunction. ( 7. ) BEFORE adverting to the points argued by the learned Counsel for the parties, I think it proper to refer to certain decisions operating in the field. In case of Laxmikant V. Patel v. Chetanbhat Shah and Anr. 2001 AIR SCW 4989 the Supreme Court has held: A person may sell his goods or deliver his services such as in case of a profession under a trading name or style. With the lapse of time such business or services associated with a person acquired a reputation or goodwill which becomes a property which is protected by Courts. A competitor initiating sale of goods or services in the same name or by imitating that name results injury to the business of one who as the property in that name. The law does not permit any one to carry on his business in such a way as would persuade the customers or clients in believing that the goods or services belonging to someone else are his or are associated therewith. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. It does not matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly, honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly, when a person adopts or intents to adopts or intends to adopt a name in connection with his business or services which already belongs to someone else it results in confusion and has propensity of diverting the customers and clients of someone else to himself and thereby resulting in injury. The three elements of passing of action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. The same principle, which applies to trade mark, is applicable to trade name. 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 though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. In Cadila Health Cure Ltd. v. Cadila Pharmaceuticals Ltd. AIR2001 SC 1952 , (2001 )2 GLR491 , JT2001 (4 )SC 243 , 2001 (3 )SCALE98 , (2001 )5 SCC73 , [2001 ]2 SCR743 , 2001 (1 )UJ669 (SC ) the Supreme Court has held: Where medicinal products are involved, the test to be applied for adjudging the violation of trade mark law may not be at par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product or another by the consumer. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effect on health and in some cases life itself. 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 medicinal product itself could have dire effects on the public health. Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Noting the frailty of human nature and the pressures placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. Although the possibility of confusion in a drug being sold across the counter may be higher, the fact that a drug is sold under prescription or only to physicians cannot by itself be considered a sufficient protection against confusion. The physicians and pharmacists are trained people yet they are not infallible and in medicines, there can be no provisions for mistake since even a possibility of mistake may prove to be fatal. In view of the varying infrastructure for supervision of physicians and pharmacists of medical profession in our country due to linguistic, urban, semi-urban and rural divide across the country and with high degree of possibility of even accidental negligence, strict measures to prevent any confusion arising from similarity of marks among medicines are required to be taken. In Para 19, it has been held that: 19. With respect, we are unable to agree that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different and the conclusion so arrived at is clearly contrary to the binding precedent of this Court in Amritdharas case AIR 1963 SC 449 (supra), where the phonetic similarity was applied by judging the two competing marks. Similarly, in Durga Dutt Sharma s case AIR 1965 SC 980 (supra), it was observed that in an action for infringement, the plaintiff must, no doubt, make out that the use of the defendants mark is likely to deceive, but where the similarity between the plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is a limitation, no further evidence is required to establish that the plaintiff rights are violated. ( 8. ( 8. ) COMING to the controversy involved in this appeal, I find that it is not in dispute that the plaintiff company is registered in the name of Alvin Will Cure Laboratories Pvt. Ltd. The plaintiff has registered the trade marks of its products BECOZEAL and VIN Z. The defendants have not disputed that they were earlier Directors in the plaintiffs company. They started the business in the name of ALWIN WILLCURE Pharmaceuticals and applied for registration of name of their concern as such. They also applied for trade marks of products in the name of AWP BECOGEEL and AWP WIN Z. In the packing of the said products they printed the prefix awp of BECOGEEL and WIN Z in a different style, not as prefix but printed AWP at a place above the words BECOGEEL and ZIN Z that too in a block. The three letters A, W and P are printed jointly making use of the lines of each letter for the next letter to look like a different mono. In this background, prima facie it is apparent that the defendants were marketing their products not in the trade name AWP BECOGEEL and AWP WIN Z but are marketing the same as BECOGEEL and WIN Z. The use of such names would certainly result in confusion as the names adopted by the defendants are having very close phonetic similarity. The reliance of the appellants on Section 133 of the Act and Rules 23 and 24 of the Rules is highly misplaced. The said advice has been obtained by the defendants representing its trade marks as AWP BECOGEEL and AWP WIN Z. However, the marketing has been started by the defendants printing AWP not as prefix of BECOGEEL and WIN Z but above the words BECOGEEL and WIN Z that too in a different style in block as stated above. Even otherwise, the defendants were having full knowledge of the plaintiffs trade marks, still making such application seeking advice and then marketing the products with deceptive similarity in the trade marks cannot be, prima facie, endorsed. Even otherwise, the defendants were having full knowledge of the plaintiffs trade marks, still making such application seeking advice and then marketing the products with deceptive similarity in the trade marks cannot be, prima facie, endorsed. The registration of the products of the defendants in a food segment would also not make any difference as the products of the plaintiff and defendants are B-Complex with Zinc and Vitamin-C and the customers cannot be expected to or would be able to differentiate it on the basis of its registration under different segment. ( 9. ) IN this view of the matter and having regard to the aforesaid legal position in my considered view, the Trial Court has rightly held that prima facie there is infringement of the plaintiffs trade marks. The plaintiff being prior user of the trade mark the balance of convenience is in its favour. The use of trade marks by the defendants would certainly cause damage and irreparable injury to the business and reputation of the plaintiff company. ( 10. ) HAVING regard to the aforesaid, in my considered view, the Trial Court has committed no error in allowing the plaintiffs application by granting temporary injunction in its favour. No case for interference is made out. Accordingly, the Miscellaneous Appeal is dismissed. Needless to say that the observations made hereinabove shall not come in the way of the Trial Court while deciding the suit.