Judgment : R. Banumathi, J. O.A. Nos. 296 and 297 of 2007: These Original Applications have been filed under Order 39 Rule 1 C.P.C. seeking interim injunction restraining the respondent from infringing the applicants Trade Mark "OMETAC" and from in any manner passing off the respondents "pharmaceutical and medicinal preparations" bearing the Offending Trade Mark "OMETAC-20" as the applicants drugs. Application Nos. 6787 and 6788 of 2007: At the time of filing the Suit, exparte order of interim injunction was granted. To vacate the order of interim injunction, A. Nos. 6787 and 6788 of 2007 have been filed by the respondent. 2. The case of the applicant is that, it is engaged in the business of manufacturing and selling of pharmaceutical products and has been carrying on business for a long time. In the course of its business, the applicant has adopted the Trade Mark "OMETAC" and on 7. 1999, the applicant had applied for registration of its Trade Mark "OMETAC". The applicant has obtained the Registration of its Trade Mark "OMETAC" by Registration Certificate dated 12. 2005. 3. The applicant is doing extensive business in the aforesaid Trade Mark and has spent considerable amount for promoting its business. During March 2006, the applicant learnt that the respondent is manufacturing and selling its pharmaceutical and medicinal products bearing offending Trade Mark "OMETAC-20" and the respondent had chosen to adopt a deceptively similar and identical Trade Mark as that of the applicants well established Registered Trade Mark "OMETAC". According to the applicant by the respondents act of passing off its medicinal products, there is a serious confusion in the Market had arisen and that unless the respondent is restrained from infringing applicants Trade Mark and passing of the Goods, the applicant would be subjected to hardship and the applicant seeks for interim injunction. 4. According to the respondent, the respondent is carrying on business in manufacturing, distributing and selling pharmaceutical and herbal products, since October 1995. The respondent used the Trade Mark name "OMETAC CAPS" for the above said products and applied for registration of Trade Mark "OMETAC CAPS" by Application dated 12. 1995. The Application for registration of Trade Mark and for issuance of certificate was returned for certain compliance on 20.3.2003 and after the word "Caps" has been disclaimed, the Registrar, Trade Mark, had issued Trade Mark Registration Certificate dated 8. 2005 for the Trade Mark "OMETAC". 1995. The Application for registration of Trade Mark and for issuance of certificate was returned for certain compliance on 20.3.2003 and after the word "Caps" has been disclaimed, the Registrar, Trade Mark, had issued Trade Mark Registration Certificate dated 8. 2005 for the Trade Mark "OMETAC". Adopting the Trade name "OMETAC", the respondent had sold its medicinal and herbal products and the respondent is honestly adopting the Trade Mark even prior to registering the applicant/plaintiffs products. The respondent is the honest and concurrent user of the Trade Mark and hence, the Suit filed by the applicant for injunction against the respondent is not maintainable and is liable to be dismissed. 5. The learned counsel for the applicant has contended that if phonetic and visual similarities are found injunction had to follow. It was further submitted that on the date of Registration of Trade Mark viz., 112. 2005, the applicant has claimed its user from 1999. Pointing out the inconsistent statements as to the date of user by the respondent, the learned counsel has urged that the respondent has no prima facie case over the Trade Mark "OMETAC" and whether respondent was in user of the Trade Mark could be gone into only at the time of trial. Submitting that applicant has Registration of Trade Mark, the ‘Balance of Convenience is in favour of the applicant and it was urged the applicant is entitled to the interim injunction. 6. Repelling the above contentions, the learned counsel for the respondent has submitted that the respondent had been in prior use of the product and the Trade Mark "OMETAC". The learned counsel further urged that the Trade Mark Certificate had been issued to the respondent even much prior to the applicant and the respondent had been in user of the Trade Mark "OMETAC" right from the year 1995 and the respondent has a right to use the same in view of ‘long user. It was further urged that even when the respondent has asked for the user status, the applicant has rushed to the Court in filing the Suit. 7. The relief of injunction being equitable relief, in the light of the above contentions, it is to be examined, whether the applicant has shown a prima facie case for the user of the Trade Mark "OMETAC" and whether the applicant is entitled to the interim injunction. 8. 7. The relief of injunction being equitable relief, in the light of the above contentions, it is to be examined, whether the applicant has shown a prima facie case for the user of the Trade Mark "OMETAC" and whether the applicant is entitled to the interim injunction. 8. Interlocutory remedy is normally intended to preserve in status-quo the rights of the parties which may appear of a prima facie case. In Wander Ltd. and Another Vs. Antox India Pvt. Ltd. (1990 (Supp.) SCC 727) : (1991 (11) PTC 1 (SC) the Supreme Court as held as follows: "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 is 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 made against the corresponding need of the defendant to be protected against injury resulting from his having been preventing from exercising his own legal rights for which he could not be 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 made against the corresponding need of the defendant to be protected against injury resulting from his having been preventing from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the ‘balance of convenience lies." 9. In Mahendra and Mahendra Paper Mills Ltd. Vs. The Court must weigh one need against another and determine where the ‘balance of convenience lies." 9. In Mahendra and Mahendra Paper Mills Ltd. Vs. Mahindra and Mahindra (1995) 1 AD Delhi 319) the Delhi High Court has held as follows: "The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." 10. In Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd, AIR 2001 SC 1952 : (2001) 5 SCC 73 : (2001) Supp MLJ 103: 2001 PTC 300 (SC) the Supreme Court has held that a higher standard has to be applied to medicinal products and that the Courts need to be particularly vigilant, where against the respondents drug, passing off is alleged. The decision in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. (supra), concludes with the following guidelines for deciding the question of deceptive similarity at p. 118 of MLJ: 35. (a) The nature of the marks i.e., whether the marks are word marks or label marks or composite marks, i.e., both words and label-works. b) The degree of resembleness between the marks, phonetically similar and hence similar in idea. .(c) The nature of the goodsin 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 require, on their education and intelligence and a degree of care they are likeiy to exercise in purchasing and/or using the goods. .(f) The mode of purchasing the goods or placing orders for the goods, and .(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. 11. The law is well settled that in order to succeed at this stage, the applicant has to establish user of the aforesaid Mark prior in point of time than the impugned by the respondent. The Registration of the Mark or similar Mark by the applicant is not of much relevance. 11. The law is well settled that in order to succeed at this stage, the applicant has to establish user of the aforesaid Mark prior in point of time than the impugned by the respondent. The Registration of the Mark or similar Mark by the applicant is not of much relevance. There must be sufficient materials to show that the applicant was in user of the Registered Trade Mark. 12. It would be necessary to consider important aspect of the matter, whether the applicant is entitled to injunction on the ground that it started using the Trade Mark "OMETAC" before the respondent did, even though the respondent got Registration of the Trade Mark in August 2005. The Application for Registration of Trade Mark "OMETAC" dated 12. 1995 states that the respondent has been continuously using the Mark, since 110. 1995. It is thus clear that even in 1995, the respondent has claimed user of "OMETAC CAPS" since 110. 1995. 13. An affidavit was also filed before the Registrar Trade Mark indicating the Annual Turnover from April 1996 to September 2002. The respondent has also paid necessary charges and the Government of India/Registrar Trade Mark issued a search report and found that there was an Application No. 613726 with the existing conflicting Mark "OMETIGET" Proprietor name and address, Franco India Pharmaceuticals Limited No. 20, Dr. E. Moses Road, Bombay 400 011. The respondents Application for Registration of Trade Mark was returned for certain compliance on 20.3.2003 directing the respondent to disclaim the word "CAPS" and accordingly, the respondent has also disclaimed the word "CAPS" and represented the Application. The Trade Marks Registering Authority issued the Registration Certificate on 8. 2005 registering the respondents product "OMETAC" even prior to registration of the applicants drug. From the various proceedings before the Registrar of Trade Mark, it is abundantly clear that the Mark was in continuous user of the respondent right from October 1995. 14. The Trade Mark Registration Certificate of the applicant would indicate that the applicant has applied for Registration of Trade Mark on 7. 1999. The applicants Registration Certificate is dated 112. 2005. In my considered view, the applicant has neither shown prior use nor the Registration is earlier in point of time. Whereas, the respondent has shown priority in adoption and continuance user of Trade Mark "OMETAC". 1999. The applicants Registration Certificate is dated 112. 2005. In my considered view, the applicant has neither shown prior use nor the Registration is earlier in point of time. Whereas, the respondent has shown priority in adoption and continuance user of Trade Mark "OMETAC". In such facts and circumstances, it cannot be said that the applicant has shown prima facie case. 15. In medicinal production and pharmaceutical products, one finds names of various drugs almost similar to each other having common prefix or suffix for the reason that the drug conveys what salt it is a derivative of. To meet this situation, the Doctrine of `Honest and the Concurrent User has been evolved. In GEC Vs. GE Co. Ltd. (1972) 2 All E.R. 507) in the context of the origin of the Doctrine of Concurrent. User, LORD DIPLOCK says thus: " …..To meet this kind of situation the doctrine of honest concurrent user was evolved for protection in cases where the use of it had not originally been deceptive but a risk of deception had subsequently arisen as a result of events which did not involve any dishonesty or other wrongful conduct on the part of the proprietor of the mark. If, however, his own wrongful conduct had played a part in making the use of the mark deceptive, the Court of Chancery would not grant him an injunction against infringement. This was but a particular application of the general equitable doctrine but he who seeks equity must come with clean hands." 16. In the context of the above observation, it is necessary to examine the contention of the respondent and the point of time, in which, the respondent has adopted its mark. As noticed earlier, the respondent has been in user of the Mark "ONETAC" right from the year 1995, earlier than the applicants Application for Registration. This Court is of the considered view that the applicant cannot claim proprietary right in the Mark "OMETAC" and he is not entitled to the equitable relief of interim injunction. It is relevant to note that the applicant has sent the letter dated 3. 2006 calling upon the respondent to stop production under the name "OMETAC-20". The respondent had sent the letter dated 3. 2006 asking the applicant to furnish their USER STATUS, instead of responding to the said letter dated 3. It is relevant to note that the applicant has sent the letter dated 3. 2006 calling upon the respondent to stop production under the name "OMETAC-20". The respondent had sent the letter dated 3. 2006 asking the applicant to furnish their USER STATUS, instead of responding to the said letter dated 3. 2006, the applicant has rushed to the Court in filing the Suit and the Applications on 33. 2006, which again is to be taken note of. 17. A word about ‘Balance of Convenience. In the Application, the respondent has shown the Annual Turnover of using the Trade Mark "OMETAC" ranging from Rs. (sic) 1.75 lakhs to 6.23 lakhs from April 1996 to March 2006. Apart from the product "OMETAC", the respondent is also manufacturing and marketing its other pharmaceutical preparations. It is settled law that temporary injunction would usually be denied in a case where the grant of it would cause greater hardship to the respondent. Continuance of the interim injunction in favour of the applicant, in my considered view, would cause hardship and irreparable injury to the respondent, which has been in user of the Trade Mark "OMETAC" for a long time and therefore, Interim injunction already granted is liable to be vacated. 18. The Interim injunction already granted is vacated. For the foregoing reasons/the O.A. Nos. 296 and 297 of 2007 are dismissed and Application Nos. 6787 and 6788 of 2007 are allowed. No costs. Application allowed.