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2007 DIGILAW 1544 (BOM)

Neon Laboratories Ltd. v. Ornate Pharma Pvt. Ltd.

2007-10-24

A.M.KHANWILKAR

body2007
P.C. : 1. This order will dispose of prayer for ad-interim relief, pressed on behalf of the Plaintiffs during the pendency of the Notice of Motion. 2. Heard Counsel for the parties. Perused the pleadings and documents on record. The Plaintiffs claim to be one of the leading manufacturers and merchants in India interalia, of medicinal and pharmaceutical preparations. According to the Plaintiffs, on or about July, 1993, the Plaintiffs conceived and adopted the trade mark "NEX" in respect of pharmaceutical preparations. The Plaintiffs claim that it is in pharmaceutical trade and carries on a well-established business for more than 25 years. The Plaintiffs then assert that the they applied for registration of their trade mark "NEX" which was registered in the name of the Plaintiffs under registration No.601808 as of 16th July, 1993, in respect of Pharmaceutical preparations falling in Class-5. The said registration of the trade mark is valid and subsisting till 16th July, 2017. The Plaintiffs claim that they have been exclusively using the trade mark "NEX" which is a word mark, extensively, throughout India and also for their exports since the year 2001. By reason of excellent quality and efficacy and also on account of extensive publicity and sales of the said mark by the Plaintiffs, the trade mark "NEX" has come to be associated exclusively with the Plaintiffs by medicinal and pharmaceutical traders and members of the public. The Plaintiffs have furnished sales figures in respect of its product "NEX" Injection from 2001-2002 to 2007-2008 at Ex.E of the Plaint. The total sales for the said product for the period 2001-2002 including direct and indirect export as well as domestic sales is stated to be Rs.2,21,397/-, for 2002-2003 Rs.17,097/-, for 2004-2005 Rs.36,000/-, for 2006-2007 Rs.13,40,076/- and from April, 2007 till June, 2007 Rs.31,626/-. The Plaintiffs also assert that they have incurred expenses of approximately of Rs.One Lakh for popularising the said product "NEX" Injection which is "NALOXONE HYDROCHLORIDE", an Opiate Antagonist and a life saving drug. On this basis it is asserted by the Plaintiffs that the trade mark "NEX" has come to be associated by traders and members of the public exclusively with the Plaintiffs. The product "NEX" used in Injection(ampoule) form has come to be associated to the traders and members of the public exclusively with the Plaintiffs. 3. On this basis it is asserted by the Plaintiffs that the trade mark "NEX" has come to be associated by traders and members of the public exclusively with the Plaintiffs. The product "NEX" used in Injection(ampoule) form has come to be associated to the traders and members of the public exclusively with the Plaintiffs. 3. The Plaintiffs claim that in or about May, 2007, it came to their knowledge that the Defendants have adopted the impugned mark "NEX" in respect of their pharmaceutical goods for cough syrup. The Defendants are also in the same trade and have adopted the said mark "NEX" for medicinal and pharmaceutical preparations dishonestly, with notice and knowledge, actual and/or constructive of the Plaintiffs’ registered trade mark with a view to trade upon the reputation acquired by the Plaintiffs in respect of their mark "NEX" and mislead the pharmaceutical traders and public into believing that the Defendants’ goods are the goods of the Plaintiffs. The Plaintiffs assert that the Defendants’ impugned mark is identical with and in any event, deceptively similar to the Plaintiffs registered trade mark. Broadly on this basis, the Plaintiffs have, after giving a cease and desist notice to the Defendants, approached this Court for action of infringement of registered trade mark, as also of passing off against the Defendants. According to the Plaintiffs, the product of the Plaintiffs is an Opiate Antagonist, whereas that of the Defendant is a cough Syrup. By user of registered trade mark "NEX" by the Defendants, there is likelihood of causing confusion and the consequences of such confusion will be quite serious. The Plaintiffs have therefore, prayed for following reliefs in the plaint. (a) that the Defendants by themselves, their servants and agents be restrained by a perpetual order, injunction of this Hon’ble Court from in any manner infringing the Plaintiffs trade mark "NEX" and/or using the impugned trade mark "NEX" in respect of pharmaceutical products and/or using the impugned trade mark "NEX" or any other trade mark deceptively similar thereto so as to infringe the Plaintiffs registered trade mark bearing No.601808. ((b) that the the Defendants by themselves, their servants and agents be restrained by a perpetual order, injunction of this Hon’ble Court from in any manner using the trade mark "NEX" in respect of pharmaceutical products selling and/or using the impugned trade mark "NEX" or any other trade mark deceptively similar thereto so as to pass-off or enable others to pass-off the Defendants goods and/or any goods not manufactured by the Plaintiffs as and for the goods of the Plaintiffs. (c) that the Defendant be ordered to deliver up to the Plaintiffs for destruction all the Defendants pharmaceutical goods including those not manufactured by the Plaintiffs and bearing the impugned trade mark NEX, as also all infringing material, packaging, dies articles and things bearing the impugned mark "NEX" or any other mark deceptively similar to the plaintiffs mark "NEX". (d) that the Defendants be ordered and decreed to pay to the Plaintiffs a sum of Rs.1,00,000/- by way of damages or in the alternative the Defendants be ordered and decreed to render a true and faithful account of all the profits/income earned by the Defendants by use of the impugned trade mark "NEX" and the Defendants be further ordered and decreed to pay to the Plaintiffs such amount as may be found due on such account being taken. (e) that pending the hearing and final disposal of the Suit, Court Receiver, High Court, Bombay be appointed Receiver of all the impugned goods, products, dies advertising or packaging material or articles and things of the defendants, bearing the impugned mark "NEX" or any other trade mark deceptively similar thereto, with all powers under Order XL Rule 1 of the CPC, 1908 including the power to take and with a direction to the Receiver to take physical possession, charge and custody of all the impugned goods, products articles and things of the Defendants bearing the said impugned mark "NEX" from wherever they may be lying, with the assistance of the Police authorities if required by this Hon’ble Court and who may be permitted to take possession of the entire goods bearing the impugned trade mark "NEX" and lying with the registered office/godowns of the defendants. (f) that pending the hearing and final disposal of the suit, the Defendants by themselves, their servants or agents be restrained by an Order or injunction of this Hon’ble Court from in any manner using in relation to any pharmaceutical products the impugned word mark "NEX" or any other trade mark deceptively similar to the Plaintiffs mark "NEX" so as to infringe the Plaintiffs’ registered trade marks bearing No.601808. (g) that pending the hearing and final disposal of the suit, the Defendants by themselves, their servants or agents be restrained by an order or injunction of this Hon’ble Court from in any manner using in relation to any pharmaceutical products bearing the impugned trade mark as per Exhibit "H" or any other deceptively similar trade mark containing the word "NEX" or any other deceptively similar word or mark so as to pass-off or enable others to pass-off the Defendants goods and/or any goods not manufactured by the Plaintiffs as or for the goods of the Plaintiffs. (h) that the Plaintiffs/the Court Receiver be provided police protection in Ahmedabad, Gujarat or wherever else necessary to execute the orders of this Hon’ble Court. (i) for ad-interim reliefs in terms of prayers (e),(f), (g) and (h) above; (j) for the cost of the suit and; (k) for further and other reliefs as the nature and circumstances of the case may require. 4. The present suit has been filed on 30th August, 2007, as the Defendants did not take remedial action inspite of cease and desist notice given by the Plaintiffs on 21st May, 2007. The Defendants however, in reply to the said notice asserted that they were well-known manufacturers and merchants of medicinal and pharmaceutical preparations since last three decades and were manufacturing and marketing the product "NEX" since over a period of two decades. Besides that the Defendants have asserted that they were the prior users of mark "NEX" for their product cough syrup. 5. The Plaintiffs besides, filing the present Suit, have taken out present Notice of Motion for interim relief during the pendency of the suit, consistent with the reliefs claimed in the prayer clauses (e) to (h) of the Plaint. 6. The Defendants after being served, appeared before this Court on 5th October, 2007 when the matter was adjourned at their request to 11th October, 2007. 6. The Defendants after being served, appeared before this Court on 5th October, 2007 when the matter was adjourned at their request to 11th October, 2007. On 11th October, 2007, advocate for the Defendants informed the Court that he had received affidavit from the Defendants who are in Ahmedabad, but the same is not in proper format. As a result, request for adjournment was made to enable the Defendants to file a proper reply affidavit. That request was accepted. Accordingly, the matter was placed on 17th October, 2007. On 17th October, 2007, it transpired that on the one hand the Defendants kept on requesting for adjournment before this Court and on the other hand, filed Suit in the City Civil Court, Ahmedabad on 10th October, 2007 and also persuaded that Court to pass exparte order against the Plaintiffs. However, these relevant developments were not disclosed to this Court when the matter was taken up on 11th October, 2007, although request for adjournment was made on the specious plea that the format of the affidavit received by the advocate was improper. It is seen that the Plaintiffs had rushed to the High Court of Gujarat and succeeded in getting the exparte order passed by the City Civil Court, Ahmedabad, set aside. As grievance was made on behalf of the Plaintiffs that the Defendants were resorting to all possible gimmicks for protracting the present proceedings with ulterior motive and that they(Defendants) were not even responding to the requisition for inspection of all the relevant documents, I passed a conditional order on 17th October, 2007 that if the Defendants fail to give inspection of the relevant record before the specified time, relief in terms of prayer clause (b) of the Motion will automatically come into force. However, it appears that the Defendants provided inspection to the Plaintiffs within the specified time. The Plaintiffs after taking inspection have filed rejoinder affidavit refuting the stand taken by the Defendants. 7. Accordingly, I shall now proceed to consider the prayer for ad-interim relief pressed on behalf of the Plaintiffs on merits. The Plaintiffs have confined the prayer for ad-interim relief in the context of claim of infringement of registered trade mark only and not for action of passing off. I shall therefore, proceed to consider the matter in that context. 8. Accordingly, I shall now proceed to consider the prayer for ad-interim relief pressed on behalf of the Plaintiffs on merits. The Plaintiffs have confined the prayer for ad-interim relief in the context of claim of infringement of registered trade mark only and not for action of passing off. I shall therefore, proceed to consider the matter in that context. 8. From the material on record it is evident that the Plaintiffs’ trade mark NEX has been registered in the name of Plaintiffs under Registration No.601808 as of 16th day of July, 1993 in respect of pharmaceutical preparations falling in Class-5. The said registration is valid and subsisting till 2017. The Plaintiffs have also established that the Plaintiffs have used the said trade mark "NEX" for sale of its product throughout India and also for exports since the year 2001. There is however, no material on record to indicate that the trade mark "NEX" was used by the Plaintiffs prior to 2001, though the same was registered in the name of the Plaintiffs on 16th July, 1993. Indeed, in view of the registration of the trade mark "NEX" in the name of the Plaintiffs, the Plaintiffs have exclusive right to use the said trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of trade mark by third party in the manner provided by the Trade Mark Act, 1999. This right flows from section 28 of the Act. 9. Insofar as the Defendants are concerned, it is not in dispute that the product marketed by them in the trade mark "NEX" is a cough syrup; The same is not a registered trade mark of the Defendants. If it is so, the Plaintiffs may be justified in asserting that it is a case of infringement of their(Plaintiffs’) registered trade mark "NEX" within the meaning of Section 29 of the Act. On that finding, the Plaintiffs would be entitled for interim relief. 10. To get over this position, the Defendants would contend that the Defendants were prior user of the trade mark "NEX". It is the case of the Defendants that the Defendants are well-known manufacturers of pharmaceutical products especially Anti-Histaminic cough products in India since last over two decades. On that finding, the Plaintiffs would be entitled for interim relief. 10. To get over this position, the Defendants would contend that the Defendants were prior user of the trade mark "NEX". It is the case of the Defendants that the Defendants are well-known manufacturers of pharmaceutical products especially Anti-Histaminic cough products in India since last over two decades. The Defendants assert that they have been marketing Anti-Histaminic cough product under various trade mark namely, (a) Histonate Expectorant, (b) Histonate Plus Expectorant, (c) Histonate Plus A Expectorant, (d) Nex Syrup, (e) Nex Drops, (f) Histolate Tables, (g) Histolate Syrup and (h) Salbuphyl Tablets. The Defendants assert that on or about 18th January, 1993, the Defendants conceived of and adopted a mark "Histo-Nex" syrup in respect of their formulation; and applied for approval from the Food & Drug Administration, Gujarat State under the Drugs and Cosmetics Act, 1940, which approval was granted on 8th February, 1993. That claim is supported by contemporaneous record, namely, the communication issued under the signature of Commissioner of Food & Drugs Control Administration dated 8th February, 1993. The Defendants then assert that thereafter in or about January, 1994, the Defendants decided to drop the word HISTO from the said mark and retain mark NEX and applied to the FDA for changing name from Histo-Nex to Nex, which approval was granted by the FDA vide their letter dated 13th March, 1994. The Defendants state that even the product of the Defendants is a Scheduled H formulation and is available only on Doctor’s prescription. The Defendants have then asserted that they are manufacturing and marketing Anti-Histaminic cough products under the trade mark "NEX" since 1994. To support this claim the Defendants are relying on the series of invoices as earliest from 25th August, 1994. Significantly, the Defendants have neither asserted nor produced any material to suggest that they introduced any product bearing mark NEX per se or as prefix or suffix prior to August, 1994. At any rate prior to 16th July, 1993, on which date word mark "NEX" was registered in the name of the Plaintiffs. 11. Be that as it may, the Defendants have relied on their sales figures in respect of the product "NEX" syrup. For the period from 1994-1995 till 2007-2008, the figures disclosed do indicate that the Defendants have done consistent business in the said product. 11. Be that as it may, the Defendants have relied on their sales figures in respect of the product "NEX" syrup. For the period from 1994-1995 till 2007-2008, the figures disclosed do indicate that the Defendants have done consistent business in the said product. The lowest sales figure for any year is Rs.2,00,666/- which is in the year 1994-95 for 60 ml. bottle and the highest is Rs.7,48,972/- for the year 2003-2004 for the same product. The lowest sales figure of 40 ml bottle appears to be Rs.47,808/- for the year 1997-98 and highest sales figure is in the sum of Rs.1,46,880/- for the same product. The total sales figures for all these period from 1994 onwards till September, 2007 for its product 60 ml. bottle NEX syrup is around Rs.64,52,808/- and 40 ml. bottle of NEX Syrup for the same period is Rs.11,27,256/-. The sales figures made available would indicate that the Defendants are marketing the product NEX Syrup since 1994. The Defendants assert that their product is different from the product of the Plaintiffs and is sold only on medical prescription. Besides, the purpose for which the two medicines are administered is also entirely different. Moreover, the packing, labels and cartoons of both the products are entirely different. As a result, there is no cause for any confusion. 12. I am in agreement with the argument of the Plaintiffs that the Defendants are marketing the product NEX syrup since 1994 and the earliest invoices produced is of August, 1994, however, that will not absolve the Defendants from the action of infringement of the registered trade mark. This is so because, the Plaintiffs’ trade mark "NEX" has been registered in earlier point of time on 16th July, 1993. The fact that the Plaintiffs started using the trade mark "NEX" only since 2001 for its product (NEX Injection) will be of no avail to the Defendants. It will be apposite to advert to section 34 of the Act. The same reads thus: "34. The fact that the Plaintiffs started using the trade mark "NEX" only since 2001 for its product (NEX Injection) will be of no avail to the Defendants. It will be apposite to advert to section 34 of the Act. The same reads thus: "34. Savings for vested rights.- Nothing in this Act shall entitle the proprietor or a registered user of registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods or services in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior- (a) to the use of the first-mentioned trade mark in relation to those goods or services be the proprietor or a predecessor in title of his; or (b) to the date of registration of the first-mentioned trade mark in respect of those goods or services in the name of the proprietor of a predecessor in title of his; whichever is the earlier, and the Registrar shall not refuse (on such use being proved), to register the second mentioned trade mark by reason only of the registration of the first mentioned trade mark." (emphasis supplied) On plain reading of this provision, there is force in the argument of the Plaintiffs that mere prior user by the Defendants from 1994 of their mark "NEX" will not create any vested right in them, for the simple reason that the trade mark "NEX" has been registered in the name of the Plaintiffs in earlier point of time on 16th July, 1993. It is not the case of the Defendants that they have applied to the competent authority for recalling the registration of trade mark "NEX" operating in favour of the Plaintiffs, nor is it the case of the Defendants that they have been permitted concurrent user of pharmaceutical products in the trade mark "NEX" in terms of section 12 of the Act. If it is so, the Defendants cannot be heard to say that they are entitled to use the trade mark "NEX" inspite of a valid and subsisting registration operating in favour of the Plaintiffs in the trade mark "NEX" in respect of pharmaceutical preparations falling in Class-5. If it is so, the Defendants cannot be heard to say that they are entitled to use the trade mark "NEX" inspite of a valid and subsisting registration operating in favour of the Plaintiffs in the trade mark "NEX" in respect of pharmaceutical preparations falling in Class-5. Ordinarily, on this finding the Plaintiffs ought to succeed in getting Interim Relief as prayed for in terms of prayer clause (b) of the Motion. 13. However, I find substance in the stand taken on behalf of the Defendants that for the time being the Court is called upon to consider grant of ad-interim relief to operate during the pendency of the Motion. While considering this aspect, the Court cannot be oblivious to the other circumstances, that may be relevant for considering for grant or non-grant of ad-interim relief. The Defendants have rightly pressed into service the observations of this Court in the case of Cluett Peabody & Co. Inc. & Anr.V/s. Arrow Apparels & Ors. reported in 1998(18) PTC 156. In this decision, in paragraph-30,the Court has noted that the Court has to keep in mind the balance of equities. In that case, the Defendants were doing business from 1985 and were selling goods in Bombay and in Banglore, having large number of employees in their establishment. Indeed, in that case, the Defendants additionally applied for rectification/removal of trade mark on the Register in favour of the Plaintiffs. It is observed in the said decision that it is well settled that even in an infringement action, principles governing injunction under Order 39 Rules 1 and 2 of C.P.C. and under section 38 of the Specific Relief Act would apply. Keeping those parameters in mind, the Court is entitled to refuse injunction even if the Plaintiff’s claim to be one of registered proprietor of the trade mark was to be accepted. In the present case, I am inclined to accept the stand taken on behalf of the defendants that they are marketing their product cough syrup in the trade mark "NEX" syrup atleast since 1994. It makes no difference whether the sale of the Defendants is limited to Gujarat. The fact remains that the Defendants are already in the market since 1994 and have been exploiting the trade mark "NEX" for its product, which has been received well in the market. It makes no difference whether the sale of the Defendants is limited to Gujarat. The fact remains that the Defendants are already in the market since 1994 and have been exploiting the trade mark "NEX" for its product, which has been received well in the market. As is evident from the sales figures provided by the Defendants since 1994 onwards, the sale of its product NEX - syrup is consistent althroughout since 1994. Whereas, the Plaintiffs have introduced their product NEX- Injection only from 2001. The sales figure disclosed by the Plaintiffs on the other hand, would indicate that it is not so consistent, inasmuch as in the first year 2001-2002 total sales is shown as Rs.2,21,397/- and in the successive years it is only Rs.17,097 and Rs.36,000/- respectively. Their sales have suddenly grown only in the year 2006-2007 in the sum of Rs.13,40,076/- but for the period April to June, 2007 it is only Rs.31,626/-. From the sales figures disclosed by the Plaintiffs, it is not possible to accept the Plaintiffs’ claim that the trade mark "NEX" has been associated with the Plaintiffs and has acquired "huge" reputation throughout India, as such. 14. In any case, the fact remains that the product of the Plaintiffs has been introduced only from 2001. It is a different matter that the Plaintiffs claim that they became aware of the product of the Defendants for the first time only in May, 2007. As I am only considering the matter at ad-interim stage, in my opinion, interest of justice would be met if the Defendants are ordered to produce their audited accounts for the relevant period in particular for last three years and file the same in this Court in a sealed cover. Besides, the Defendants would also file their monthly accounts statement in respect of the product NEX syrup, duly certified by the Auditor on or before 10th of every English calender month in this Court in a sealed cover. 15. The Plaintiffs have claimed damages from the Defendants only in the sum of Rs.One lakhs. From the material on record it is obvious that the Defendants would be in a position to make good the said claim, even if the Plaintiffs were to eventually succeed. Even for that reason the arrangement proposed under this order would subserve the ends of justice. From the material on record it is obvious that the Defendants would be in a position to make good the said claim, even if the Plaintiffs were to eventually succeed. Even for that reason the arrangement proposed under this order would subserve the ends of justice. This is so because it is not possible to infer that the Defendants have dishonestly adopted the mark NEX-syrup for its product from 1994. In as much as, the Plaintiffs’ own case is that their product NEX-injection was introduced in the market only from 2001 and not earlier. 16. Counsel for the Defendants was at pains to persuade this Court to reject the prayer for Ad-interim relief in entirety. For that purpose, reliance was placed on my unreported Order dated 17th September, 2007 in Notice of Motion No. 3267 of 2007 in Suit No.2445 of 2007 in the case of Dr.Abraham Patani & Anr. V/s. M/s.Pacific Medical & Biological Services Pvt.Ltd. However, in that case I was persuaded to reject the prayer for ad-interim relief having regard to the fact situation of that case. Amongst other, I had found that there were other products having common suffix and that the said trade mark was in use for long time. In my opinion, the arrangement directed to be observed during the pendency of the Motion will not cause any prejudice to the Defendants. At the same time, it will secure the interest of the Plaintiffs. Moreso, in the event, the Court was to allow the Motion, appropriate directions can be passed on the basis of information to be disclosed by the Defendants which is to be kept in sealed cover till further orders to be passed by the Court at the hearing of the Motion. 17. Counsel for the Defendants had relied on the observations of the Apex Court in particular paragraph-15 of the decision in the case of Corn Products Refining Co. v/s.Shangrila Food Products Ltd.[ AIR 1960 S.C. 142 ]. The Apex Court observed that the series of marks containing the common element or elements therefore only assist the applicant when these marks are in extensive use in the market. The Defendants relying on the documents produced by the Plaintiffs themselves would contend that the mark "NEX" or word "NEX" was used as prefix in the trade mark of other products. The Defendants relying on the documents produced by the Plaintiffs themselves would contend that the mark "NEX" or word "NEX" was used as prefix in the trade mark of other products. At page-88 of the plaint, the Plaintiffs have relied on the brand index of IDR issued in September-October, 2006. The same indicates that besides the trade mark "NEX" operating in the name of the Plaintiffs, there are other products in the name - NEX-M(D.R.John’s), NEXPAN(Zuventus Zuvista), NEXPRO[Torrent(Prima)], NEXPRO FAST[Torrent], NEXPRO IV[Torrent], NEXPRO-RD[Torrent], NEXTOP [Torrent], NEXUS SUSP [Lexus], NEXUS-MD[Lexus], NEXUS-P[Lexus], NEXUS-P SYP [Lexus] and NEXX [Anthiea]. Similarly, at page 90 of the plaint discloses the brand index of IDR for the period-March-April, 2007 of the same products referred to above. This only indicates that there are other pharmaceutical products in the series of NEX. The Defendants will have to establish the fact that the said marks were or are in extensive use in the market, which is a matter to be considered at the hearing of the Motion. 18. Counsel for the Plaintiffs however, would rely on the decision of the Apex Court in the case of Ruston and Hornby Ltd. V/s. Zamindara Engineering Co.[AIR 1970 Supreme Court 1649]. In paragraph-5 of this Judgment, the Court has noted that in an infringement action the issue is- "Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff’s registered trade mark?" The Court went on to observe that once that finding is recorded in favour of the Plaintiffs, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff’s mark. In paragraph-7 of the same Judgment, the Court went on to observe that in an action of infringement where the defendant’s trade mark is identical with the plaintiff’s mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. It is further noted that where the alleged infringement consists of using not the exact mark on the Register but something similar to it, the test of infringement is the same as in an action for passing off. Former dictum of the Apex Court would apply to the case on hand, as the Defendants are exploiting trade mark "NEX" which is the registered trade mark of the Plaintiffs and is identical thereto. 19. Former dictum of the Apex Court would apply to the case on hand, as the Defendants are exploiting trade mark "NEX" which is the registered trade mark of the Plaintiffs and is identical thereto. 19. Counsel for the Plaintiff had also relied on the exposition in the case of Cadila Health Care Ltd. V/s. Cadila Pharmaceuticals Ltd. reported in AIR 2001 S.C.1952, in particular paragraph Nos. 21 to 23, 28, 30 and 35 thereof, to contend that the argument of the Defendants that no confusion shall be caused as its product is available only on doctor’s prescription or on account of the other circumstances highlighted by the Defendants, none of that is of any significance. 20. However, as aforesaid I am considering the matter only for grant or non-grant of ad-interim relief. At this stage, as observed earlier, applying the principle of balance of convenience and irreparable loss, I am inclined to hold that the scale on those aspects tilts in favour of the Defendants. Only after full-fledged hearing of the Motion, final order can be passed against the Defendants. Indeed, the Defendants cannot be heard to plead equity later on. The Plaintiffs have rightly pressed into service observations of the Division Bench of our High Court in the case of Schering Corporation & Ors. V/s. Kilitch Co.(Pharma) Pvt.Ltd. reported in 1994 IPLR page 1, which has followed the opinion of the Delhi High Court in the case of Hindustan Pencils Pvt.Ltd. V/s. India Stationery Products Co. & Anr.[AIR 1990 Delhi 19] to buttress that position. 21. Taking overall view of the matter I have no hesitation in refusing to grant ad-interim relief in terms of prayer clause (b) as prayed for in the fact situation of the present case. At the same time, it is ordered that the Defendants shall submit their audited accounts in respect of product NEX syrup for the relevant period, in particular for last 3 financial years in a sealed cover, to be filed in this Court within four weeks from today. Besides, the Defendants shall submit monthly statement of accounts in respect of their product NEX syrup duly certified by the qualified auditor, to be filed in this court on or before 10th of every English calender month in a sealed cover till the disposal of the Motion. 22. Besides, the Defendants shall submit monthly statement of accounts in respect of their product NEX syrup duly certified by the qualified auditor, to be filed in this court on or before 10th of every English calender month in a sealed cover till the disposal of the Motion. 22. Notice of Motion shall proceed for hearing before appropriate bench, to be listed on 15th January, 2008. Parties to exchange further pleadings well in advance, to be filed in the Registry on or before 18th December, 2007.