ANIL KUMAR, J. ( 1 ) THIS order shall dispose of plaintiffs application under Order XXXIX rules 1 and 2 read with Section 151 of Code of Civil Procedure seeking restraint against the defendant from using his registered trade mark "meromer" alleged to be deceptively similar to the plaintiff s trade mark ""meronem"" and defendant s application under Order XXXIX Rule 4 read with Section 151 of Code of Civil procedure to vacate the interim order dated 6th October, 2005 whereby defendant was restrained from selling, marketing or in any manner dealing with pharmaceutical product under the name "meromer". ( 2 ) BRIEF facts to comprehend the disputes between the parties are that plaintiffs filed the suit for permanent injunction seeking restraint of infringemts by the defendant as that of plaintiff contending that plaintiff No. 1, Astrazeneca U. K. Limited, is a company constituted under the laws of England having its registered office at London which was formed as a result of the merger of two world renowned pharmaceutical groups, namely, Astra AB incorporated in Sweden and its subsidiary Zeneca Ltd. incorporated in the United Kingdom. It was asserted that pursuant to merger of Astra AB and Zeneca, plaintiff No. 1 became the assignee of registered trade mark ""meronem"" bearing registration No. 532328 in class 5 in India from Zeneca Limited. Zeneca Ltd. had obtained the registration in its name on 27th June, 1990 which is valid and subsisting till 26th June, 2014 and this was assigned by Zeneca Limited in favour of plaintiff no. 1 by deed of assignment dated 4th January, 2000. It was further stated that another deed of assignment dated 9th August, 2000 was executed by Zeneca Limited to facilitate formal registration of the assignment of several of Zeneca?s trade marks including "meronem" and this assignment deed dated 9th August, 2000 along with form TM 24 was lodged with the Registrar of trade mark by letter dated 28th march, 2001 and the application is pending with the trade mark Registry, Bombay. The plaintiff No. 1 thus claimed all the rights in respect of registered trade mark "meronem" until 26th June, 2014. Plaintiff No. 2, Astrazeneca Pharma India limited, is stated to be a company incorporated in India which entered into a licence agreement dated 1st March, 2002 with plaintiff No. 1 to use the trade mark "meronem". The plaintiff No. 1 thus claimed all the rights in respect of registered trade mark "meronem" until 26th June, 2014. Plaintiff No. 2, Astrazeneca Pharma India limited, is stated to be a company incorporated in India which entered into a licence agreement dated 1st March, 2002 with plaintiff No. 1 to use the trade mark "meronem". ( 3 ) THE plaintiffs contended that the drug under the brand name "meronem" is marketed by plaintiff No. 1 since 1995-96 in over 89 countries. Drug of the plaintiffs MERONEM is a pharmaceutical preparation of "meropenem" which is a sterile dry powder for intravenous injection or infusion which has to be reconstituted before injecting and/or infusing intravenously. This drug belongs to carbapenem group of antibiotics and is used for curing serious life threatening infections such as Pneumonias and Nosocomial Pneumonias; Urinary tract infections; Intra abdominal infections; Gynaecological infections such as endometritis and pelvic inflammatory disease; Skin and skin structure infections, meningitis, septicaemia and Empiric treatment for presumed infections in adult patients with febrile neutropema used as mono-therapy or used in combination with antiviral or antifungal agents. ( 4 ) THE dosages and administration of the drug depends on the age of the patient and the type and severity of the infection and it is administered as an intravenous bolus injection or by intravenous infusion. For intravenous bolus injection, the solution is made with sterile water and for using intravenous infusion, it is constituted with compatible infusion fluids. It is a prescription drug largely available at hospital pharmacies. ( 5 ) M/s. Zeneca Limited had launched the plaintiff s drug "meronem" in the united Kingdom in 1995 and plaintiff No. 2 had introduced it in the Indian market in March 2000. It was stated by the plaintiffs that the drug sold by them in india has a shelf-life of four years. The plaintiffs stated that they have spent and continued to spend considerable amounts by way of promotional expenditure on their brand "meronem". According to plaintiffs the medical fraternity, trade and consumers throughout the world and more particularly in India associate the drug only with the registered trademark "meronem" and this trademark of plaintiffs has clear distinctiveness and is associated with the plaintiffs exclusively in india and worldwide. ( 6 ) IT was asserted that plaintiffs learnt about the launch of the defendant s drug "meromer" sometime in early 2005. ( 6 ) IT was asserted that plaintiffs learnt about the launch of the defendant s drug "meromer" sometime in early 2005. Medicinal preparation of the defendant was stated to be identical to that of plaintiffs and is sold in India in vials of 500 miligrams and 1 gram. Plaintiffs were emphatic that the composition, dosage and antibacterial spectrum of the plaintiffs product and the defendant s products, sold under their respective mark are also more or less the same/identical. It was categorically pleaded that the stark difference between the drug sold by plaintiffs under the registered trademark "meronem" and the drug sold by the defendant, under the mark "meromer" is that while the plaintiffs drug has been approved for a shelf life of four years, the defendant s drug has been approved for a shelf life of only two years. On the basis of the difference of the shelf life it was contended that there is considerable higher possibility and likelihood of deception and confusion between the drugs sold under the plaintiffs registered trademark "meronem" vis- a-vis the drug sold by the defendant under the mark "meromer". ( 7 ) THE plaintiffs also challenged the sale of drug Meropenem by the defendant under the mark "meromer" on the ground that the trade names of the plaintiffs and defendant are deceptively similar and the defendant is also resorting to the same colour scheme or blue and red. Allowing the defendant to continue the use of the trademark "meromer" would create an impression amongst consumers in the trade that the trademark of the defendant is also connected with the plaintiffs and their business or that the goods sold by the defendant are being sold and manufactured under the sponsorship and with the approval of the plaintiffs. In the circumstances plaintiffs claim restraint against the defendant from using, selling, offering for sale, exporting, advertising, marketing and/or in any other manner dealing with any medicinal or pharmaceutical preparation or drug under the trademark "meronem". ( 8 ) ON an interim application of the plaintiffs an ex-parte ad interim order was passed in favour of plaintiffs restraining the defendant from using the similar trademark "meronem" which is deceptively similar to that of plaintiffs and the defendant was restrained from selling, marketing or in any manner dealing with the pharmaceutical products under the brand name "meronem" by order dated 6. 10. 2005. 10. 2005. ( 9 ) THE defendant has contested the claim of the plaintiffs contending inter-alia that the trademark "meronem" was adopted in an honest manner after taking all necessary safeguards prior to its adoption. It was pleaded that the defendant is in the business of manufacturing and selling various bulk drugs and formulations and had set up a plant at the cost of Rs. 1. 68 crores to manufacture the molecule Meropenem. Before launching the formulation under the trademark "meronem" a search was conducted at the office of the Trademark Registry and several pending trademark applications and registered trademarks with the prefix "mero" were found and consequently defendant opted to register the trademark "meronem" with prefix "mero". According to the defendant the prefix MERO is common to the trade and no single person or entity can claim exclusive rights to the same. ( 10 ) THE defendant had also filed an application for registration of his trademark "meronem" under number 1299987 dated 2. 8. 2004 in Class 5 and his application after due examination and in accordance with law is stated to have been allowed and a registration certificate dated 1. 12. 2005 was issued, a copy of which was filed by the defendant during the pendency of the case and consequent to the registration of the trademark of the defendant it has been asserted that the plaintiffs are not entitled for any relief on the basis of infringement of their registered trademark as the mark of the defendant is also registered and the trademark of the defendant shall relate back to the date of application which is prior to the date of institution of the suit. The defendant also contended that since plaintiffs and defendant are both having registered trademarks, the plaintiffs cannot exercise their rights on the basis of registered trademark against the defendant who also owns a registered trademark. It was further pleaded that the registration with respect to the trademark "meronem" was completed on 30. 8. 2005 even prior to the institution of the suit. The mark of the defendant was stated to have been advertised in trademark journal No. 1328 Supplement 4 dated 28. 2. 2005 at page 329 and the time prescribed for filing opposition to the grant of registration on Form TM-5 expired on 30. 8. 8. 2005 even prior to the institution of the suit. The mark of the defendant was stated to have been advertised in trademark journal No. 1328 Supplement 4 dated 28. 2. 2005 at page 329 and the time prescribed for filing opposition to the grant of registration on Form TM-5 expired on 30. 8. 2005 and no person including plaintiffs filed an opposition and, therefore, the mark "meronem" for which an application for registration was filed was deemed to be registered on 30. 8. 2005 as no objection to the registration of the mark was filed by anyone including plaintiffs. Relying on the report of the trademark Registry dated 20. 9. 2004 defendant contended that even an expert body like trademark Registry has not considered the trademark "meronem" of the defendant as a conflicting mark in its examination report. ( 11 ) DURING the pendency of the present suit, the plaintiffs also filed a rectification application first before the Registrar and thereafter before the appellate Board. Regarding the rectification proceedings initiated by plaintiff no. 1 before the Registrar of Trademarks and Intellectual Property Appellate board it was pleaded by the defendant that the application has been filed by the plaintiff No. 1 without following the procedure. The application was alleged to be barred under Section 125 of the Trademarks Act, as when a suit is pending rectification application lies before the Intellectual Property Board and realizing his mistake the plaintiff No. 1 has filed yet another application before the Intellectual Property Appellate Board in contravention of procedure prescribed under Section 124 of the Trademarks Act and consequently no rectification application is pending as the plaintiffs were not entitled to file an application suo motto without the prima facie approval of the Court. ( 12 ) REGARDING his mark "meronem", the defendant contended that prefix "mero" is common to the trade and cannot be appropriated by the plaintiffs alone. Relying on trade practices it was stated that as there are number of trademarks which are used in pharmaceutical industry with a common prefix derived from the generic name Meropenem, the defendant is entitled to use the mark meromer?. The plaintiffs and the defendant are marketing the molecule meropenem? and the only difference between the two products is the shelf life and of course the price, as the drug marketed by the defendant is cheaper. The plaintiffs and the defendant are marketing the molecule meropenem? and the only difference between the two products is the shelf life and of course the price, as the drug marketed by the defendant is cheaper. ( 13 ) THE defendant also refuted the allegations of the plaintiffs that they are the registered proprietors of trademark "meronem". It was stated that the certificate produced by the plaintiffs show that the mark "meronem" is registered under number 532328 in Class 5 in favour of Zeneca Ltd which is not a party to the proceedings and the search conducted on 30. 11. 2005 shows that the mark is still registered in the name of Zeneca Ltd and, therefore, the plaintiffs are not the proprietors of the trademark "meronem" and since neither of the plaintiffs are the registered proprietors of the trademark they are not entitled to institute the suit for infringement of the registered trademark. The defendant also highlighted the discrepancies in the statements made on behalf of plaintiffs in their pleadings. It was stated that the plaint is based on the merger of Astra AB incorporated in Sweden with its merger with Zeneca Ltd whereas in another affidavit the plea raised by the plaintiffs is that Astra AB of Sweden merged with Zeneca plc. Zeneca Ltd is not the Zeneca plc and in the pleadings in the plaint no mention of Zeneca plc was made. The assignment deed dated 4. 1. 2000 produced by the plaintiffs was also contended to be fabricated as assignment deed dated 4. 1. 2000 shows Zeneca Ltd as an existing company which could not be after merger of Zeneca Ltd with Astra AB. ( 14 ) REGARDING the passing off action it was pleaded that added material is sufficient to distinguish the product of the defendant and so no passing off action can be taken against the defendant also on account of surrounding circumstances and the trade practices and trade channels through which the goods pass. According to defendant the mark "meronem" and "meronem" are not phonetically, visually or in any other manner deceptively similar to each other and their marketing is also done in different manner. Plaintiffs sell their product in beehive cartons of 10 vials and not in a carton for individual vial whereas the defendant sells the goods in mono cartons. According to defendant the mark "meronem" and "meronem" are not phonetically, visually or in any other manner deceptively similar to each other and their marketing is also done in different manner. Plaintiffs sell their product in beehive cartons of 10 vials and not in a carton for individual vial whereas the defendant sells the goods in mono cartons. The shape of the vials of the plaintiffs and defendant were also stated to be different as well as the colours used by them. The plaintiffs are stated to be using blue colour for its vial of 500 mg whereas defendant use red colour for 500 mg. For 1000 mg vial plaintiffs use red colour whereas defendant use blue and the style of writing adopted by plaintiffs and defendant are also stated to be different and the name of the manufacturer is clearly mentioned so as to lead to no confusion. Refuting the possibility of confusion it was stated that the drug is to be administered by trained professionals and there cannot be any confusion. ( 15 ) THE emphasis was laid by the defendant on the price of the drug of the plaintiffs and the defendant. The only difference which has also been admitted by the plaintiffs is the shelf life. The shelf life of plaintiffs drug is four years whereas shelf life of defendant s drug is two years, however, the price difference is substantial. The price of plaintiffs drug is approximately rs. 1200/- whereas the price of defendant s drug is about 2/3rd of the price of the plaintiffs. ( 16 ) THE defendant has also sought vacation of the ex-parte ad interim order passed in favour of plaintiffs on the ground that plaintiffs were not the first manufacturer/marketer to adopt the prefix MERO and plaintiffs cannot allege that they have bonafide grievance against the defendant. The plaintiffs have mislead the Court and obtained the interim order by suppressing the facts. It is also contended that the balance of convenience is in favour of defendant as the defendant had already launched its goods in the market in November, 2004 and has invested 1. 68 crores in setting up the manufacturing unit and the drugs of about 1. 5 crores are in the stock to be marketed. It is also contended that the balance of convenience is in favour of defendant as the defendant had already launched its goods in the market in November, 2004 and has invested 1. 68 crores in setting up the manufacturing unit and the drugs of about 1. 5 crores are in the stock to be marketed. The defendant also contended that interim injunction will cause irreparable loss and hardship as defendant is the largest pharmaceutical company in India which commenced business in 1992. The action of the plaintiffs have also been challenged on the ground that the plaintiffs have not taken any action against other persons and companies using the prefix MERO in their trade name and marketing the same drug. ( 17 ) I have heard the learned counsels for the parties, Dr. Singhvi for the plaintiffs and Mr. Sundaram for the defendant, in great details for a number of days. The suit is at a stage when the existence of the rights of the plaintiffs and their violations are contested and uncertain. The rights of the plaintiffs are still to be established after the trial on evidence. Considering the magnitude of the sale of drug of both the parties the Court will have to go by the principle of balance of inconvenience? which will be who will be more inconvenienced in case the injunction as prayed for by the plaintiff is granted or not granted and who will suffer irreparable loss. The principle enunciated by the Apex Court in the case of Wander Ltd and anr. Vs Antox India (P) Ltd be a guiding principle to resolve this controversy. In this case it was held by the supreme Court as under:"usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it stated: "is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The object of the interlocutory injunction, it stated: "is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting form his having been prevented from exercising his own legal rights for which he could not be adequately compensated. " in the circumstances, this Court must weigh plaintiff s need against the defendant s and determine where the balance of convenience lies and preserve the status quo in respect of rights of the parties which will appear on a prima facie case. This task is slightly more difficult because the defendant has already commenced his enterprise and production and substantial amount of his drug is in stock and in the market. " ( 18 ) BROAD similarities and dis-similarities between the products of the plaintiffs and defendant, who are marketing the same drug Meropenem which is used for curing life threatening infection, with only difference in their shelf life, are extracted in following table. COMPARISON OF PLAINTIFFS AND DEFENDANT s PRODUCTS WHO ARE MARKETING THE SAME drug MEROPENEM, BELONGING TO CARBAPENEM GROUP OF ANTIBIOTICS ( 51 ) THE name "mero" is from the common name of the drug, Meropenem and the defendant and the plaintiffs both can not claim exclusive right to the same. The non descriptive words nem and mer of the two trade names are distinct. This distinction coupled with others, colour scheme and shape of the vial, which have been perused by me, demonstrate quite dis-similarities between the two products, which is the same medicine, marketed under the different trade names. The only difference is the shelf life which can be ascertained from the date of expiry and the price, as the drug marketed by the plaintiffs is costlier than the same drug marketed by the defendant. The principals laid down by the Apex Court in cadilla do not overrule most of the ratios of S. B. L Ltd (supra) and therefore the distinction carved out by the learned counsel for the plaintiffs can not sustain the pleas of the plaintiffs. The principals laid down by the Apex Court in cadilla do not overrule most of the ratios of S. B. L Ltd (supra) and therefore the distinction carved out by the learned counsel for the plaintiffs can not sustain the pleas of the plaintiffs. Even if the entire trade mark is to be considered, for various factors as detailed herein above the two trade marks will be essentially different. The reliance of the plaintiffs on Corn Products refining Co. v. Shangrila Food Products Ltd. , (1960) 1 SCR 968 also does not support their pleas. In Corn Products (supra) the two marks were glucovita and gluvita which were held to be dis-similar by the Registrar on the ground that word co between the prefixes and suffixes was sufficient to distinguish the two marks. The Apex Court however, did not agree that word co will distinguish two trade marks with prefixes and suffixed being same. The Supreme Court had held:"18. Apart from the syllable co in the appellant?s mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other. " ( 52 ) A division Bench of Madras High Court in AIR 1998 Madras 347, Indo pharma Pharmaceutical Works Ltd. Vs Citadel Fine Pharmaceutical Ltd had found words enerjex and enerjase dissimilar as the suffixes of both the words jex and jase were found to distinguishable and dissimilar and holding that these words will not create confusion. The plea of the counsel of the plaintiffs that in contradistinction the words NEM? and mer are quite phonetically similar is not acceptable. Both the words are quite distinct and the similarity between the two is aberration of their perception. ( 53 ) DISSIMILARITIES in "meronem" and meromer can further be perceived on the basis of principles enunciated in Aviat Chemicals Pvt. Ltd. Vs Intas pharmaceuticals ltd 2001 PTC 601 (Delhi) contending that Lipicard and Lipicor are dissimilar; Novratis AG Vs Wanbury Ltd and anr, 121 (2005) DLT 316 inferring that Coriminic viz a viz Triaminic/triominic are quite dissimilar and distinquishable and Kaviraj Pandit Durga Dutt Sharma Vs Navratna Pharmaceuticals laboratories, AIR 1965 SC 980 finding Navaratna and Navaratna Kalpa different and dissimilar. ( 54 ) THE plaintiffs have tried to distinguish the case of Liv-52 (supra) on the ground that in that case it was found that about hundred drugs in the market were using the abbreviation liv from liver, an organ of human body as constituent of names of medicinal preparations meant for treatment of ailments and diseases associated with liver where as in the case of plaintiffs there are only six companies, two of which are plaintiffs and defendant. Regarding 30 to 35 applications, contended by the defendant with the registrar of trademarks with the prefix "mero" , plaintiffs stated that the presence of a mark on the register does not prove its user and consequently the plea of the defendant that "mero" is commonly used in the trade is not sustainable. ( 55 ) THIS submission of the plaintiffs is based on their own assumption. At the interim stage 30 to 35 application with the registrar of trademarks with the prefix mero will rather demonstrate that the word "mero" emanating from the common name of the medicine Meropenem, is commonly used. In any case even the plaintiffs have admitted that four more persons/companies are also marketing the drug meropenem with the trademarks having prefix maro . No hard and fast rule can be laid down as to how many more persons or companies should be using a particular name so as to infer its commonality. In my opinion it will depend on the product and trade and in some cases even if only one more company is using a similar trade name, it may show the commonality of the name. The plaintiffs have admitted that four more companies are marketing the same drug having prefix maro and no action has been taken against them. I am not quite convinced with the argument of the plaintiffs that list of trade marks given by the defendant without any corroborative evidence of views cannot be relied upon as evidence in support of plea that "mero" is common to trade. The trade marks of the plaintiffs and the defendant have not been spilt for purpose of comparison but because both of them have prefix MERO which is generic word. This generic word is used not only by the parties to the suit but by a number of other such drug manufacturers. The trade marks of the plaintiffs and the defendant have not been spilt for purpose of comparison but because both of them have prefix MERO which is generic word. This generic word is used not only by the parties to the suit but by a number of other such drug manufacturers. In the circumstances, action of infringement and passing off only against the defendant, prima facie also points towards other factors. In the circumstances the plea of the defendant that the present action is being initiated against him to wipe off the competition raised by the defendant, on account of marketing the same drug at a much lower price becomes significant in order to a ascertain the balance of convenience between the parties. ( 56 ) THE ratio of the judgments relied on by the plaintiff do not support their pleas and contentions and they are clearly distinguishable. In 2005 (30) ptc 14 (BOM), Sun Pharmaceutical Industries Ltd. Vs Wyeth Holdings Corporation and anr. , a division Bench of Bombay High Court had declined to interfere with the discretion exercised by the Single Judge in granting injunction in similar trade marks pacitane which was a registered trade mark and Parkitane which was not a registered trade mark. Relying on the observation in N. R. Dongre Vs whirlpool Corporation (supra) and Printers (Mysore) Private Ltd. Vs Pothan joseph, (1960) 3 S. C. R. 713 about the interference in the appeal arising out of discretionary order of the temporary injunction, it was held that the interference in appeal will be called for only if the conclusion reached is that the exercise of discretion by the trial judge was contrary to the settled principles for the grant of temporary injunction or that it is arbitrary or perverse. Similarly in the 2004 (29) PTC 421 (Del), Glaxo Smithkline pharmaceuticals Ltd. and Anr. Vs Naval Kishore Goyal and ors the defendant s proposed trade mark had not been published and therefore at the threshold and a preliminary stage of a suit, the holder of registered trade mark was accorded jural protection. In 2003 (27) PTC 525 (Del), Sanat Products Ltd. Vs Glade Drugs and Nutraceuticals Pvt. Ltd and anr the drugs reform? and refirm? In 2003 (27) PTC 525 (Del), Sanat Products Ltd. Vs Glade Drugs and Nutraceuticals Pvt. Ltd and anr the drugs reform? and refirm? were found to be deceptively similar but these namesdid not have any common prefixes based on some ailment, organ of the body or on the name of common medicine in contradistinction to the present case. The case of the SPOXIN and SUPAXI, 2002 (25) PTC 592 (Bom) (DB) is also clearly distinguishable on the same principle and does not support the contentions of the plaintiffs. These two trade marks were deceptively similar but the drugs were quite different and in case of confusion could lead to disastrous results in contradistinction to the plaintiff s and defendant products which are the same drug marketed under the different names. The drug marketed by the parties to the suit is same except the content of buffering agent used by them which makes the shelf life different, shelf life is four years of plaintiff s drug and two years of defendant drug. ( 57 ) ESSENTIAL description and characteristics of the two medicines of plaintiffs and defendants are given herein before in a table. A mere look at them reveals that there is no difference in the properties of the two medicines except the shelf life and of course the price. The same drug is being marketed by the plaintiffs and the defendant. The price of the drug marketed by the defendant is cheaper to the drug marketed by the plaintiffs. The composition of the drug of the plaintiffs and the defendant is same except the content of buffering agent. As there is slight difference in the content of the buffering agent, that makes the shelf life different i. e the dates of expiry of the drug will be different for the drug of the plaintiffs and the defendant. The shelf life of the drug of the plaintiff is four years whereas in case of defendant it is two years. In the peculiar circumstances of the present case even if the of deceptive similarity is assumed between the trade marks of the plaintiffs and of the defendant, there will not be any disastrous or any harmful effect inasmuch as the drug is the same. In the peculiar circumstances of the present case even if the of deceptive similarity is assumed between the trade marks of the plaintiffs and of the defendant, there will not be any disastrous or any harmful effect inasmuch as the drug is the same. The plea of the plaintiffs that the difference in shelf life shall lead to disastrous effect, seem to be hypothetical and assumptive and more of an attempt to some how discredit the product of the defendant. This acquires more significance because when the product of the defendant was advertised in trademark journal, no opposition was filed by the plaintiffs. Admittedly the drug Meropenem is marketed by others using the name with prefix "mero" and no action has been taken by the plaintiffs against the manufacturers of such other companies. Date of expiry of every medicine is given on packing. It will be too much to assume that in case of the product of the plaintiffs before its administration by the qualified persons, they will be presume it to be four years without looking at the date of manufacture and date of expiry. Whether the shelf life of plaintiffs product is four years or two years in case of defendant, before administration by the qualified personals, the date of expiry will be checked and therefore it cannot be inferred that on account of difference in shelf life between the products of the plaintiffs and the defendant, will cause disastrous results or confusion which will result in loss of life or other serious health hazard. ( 58 ) CONSIDERING the averments made by the parties, it is difficult to infer at this stage that the adoption of the trademark Meromer? by the defendant is with the intention to pass off his product as that of plaintiffs. The defendant has spent considerable amount in setting up the plant. The plaintiff was not the first to adopt and use the prefix MERO as trademark merocel was registered in favour of M/s Merrel Dow Pharmaceuticals Inc. no. 2110 east Galiraith Raod, Cincinnati, Ohio, U. S. A which fact can not be denied by the plaintiffs. There are other companies marketing the same drug, Meropenem, with the trade names having prefix "mero". Perusal of the plaint also reveals that the plaintiffs did not make any averment regarding trans border reputation. no. 2110 east Galiraith Raod, Cincinnati, Ohio, U. S. A which fact can not be denied by the plaintiffs. There are other companies marketing the same drug, Meropenem, with the trade names having prefix "mero". Perusal of the plaint also reveals that the plaintiffs did not make any averment regarding trans border reputation. No material as has been relied on or produced by the plaintiffs to show its trans border reputation which were noticed by the Apex Court in N. R. Dongre v. Whirlpool Corpn. , (1996) 5 SCC 714 . ( 59 ) DEFENDANT is one of the companies in India which is marketing the drug meropenem which is essentially the same as that marketed by plaintiff but at a cheaper price. The defendant had launched his drug in November, 2004 after investing considerable amount in setting up its unit for the manufacture of the said drug. The trademark of the defendant was advertised in the trademark journal but no opposition to it was filed by the plaintiffs. After the institution of the suit, the rectification proceedings were initiated first before the Registrar and thereafter before the Appellate Board without seeking prima facie satisfaction of this Court regarding invalidity of the registration of the defendant s mark. In the plaint and the application for interim injunction, correct particular and facts about the assignment of trade mark in favour of the plaintiffs were not given. The plaintiffs though have admitted that other companies are also marketing the same medicine with different trade marks having common prefix "mero" and no action has been initiated by the plaintiffs against such other companies. In the entirety of the facts and circumstances, if the defendant shall be restrained from selling, marketing or in any manner dealing with the pharmaceutical drug Meropenem under the trade name meromer the of the inconvenience caused to the defendant shall be much more. Public interest will also support availability of same drug at a cheaper price. So prima facie, in my opinion the balance of convenience is in favour of the defendant. Any interim injunction in the facts and circumstances may also cause irreparable loss to the plaintiffs. Public interest will also support availability of same drug at a cheaper price. So prima facie, in my opinion the balance of convenience is in favour of the defendant. Any interim injunction in the facts and circumstances may also cause irreparable loss to the plaintiffs. The loss of the plaintiffs seems more to be financial which can be safeguarded by directing the defendant to maintain accounts of sale of the drug Meropenem under the trade name meromer and submit the accounts regularly to this Court every half yearly. ( 60 ) FOR the foregoing reasons the order dated 6th October, 2005 needs to be vacated and injunction application filed by the plaintiffs merits rejection and therefore, I. A. No. 8078/2005 filed by the plaintiffs is accordingly dismissed and IA No. 8561/2005 filed by the defendant is hereby allowed. The interim order dated 6th October, 2005 is vacated. The defendant is, however, directed to maintain the account of sale of drug under the trade name meromer which shall be submitted to this Court every half yearly. ( 61 ) NEEDLESS to mention, the views expressed above are tentative and prima facie conclusions which shall not be treated as expression of any final opinion on the final merits of the case. .