COMMON JUDGMENT Ms. R. BANUMATHI, J. 1. Being aggrieved by the dismissal of applications and declining injunction restraining the Respondents from committing infringement of registered trade mark “Actilife” and also declining injunction in respect of passing off, Appellant-Plaintiff has filed these appeals. 2. Briefly stated, case of Appellant-Plaintiff is that Appellant is a leading manufacturer of pharmaceutical products and Nutraceutical and food supplements. In the course of business, Appellant had honestly conceived and adopted the trade mark “Actilife” on 3.9.2004 and obtained trade registration certificate in Class 5 under No. 1306695 on 10.11.2005. Appellant had commenced using the trade mark “Actilife” and started and selling their products since 7.10.2005 continuously and extensively. Appellant had spent considerable amounts and efforts for promoting the sales of their products sold under the trade mark “Actilife”. Case of Appellant is that in October 2010, 2nd Respondent-M/s.Insta Foods started manufacturing for the 1st Respondent and marketing the products under the mark “ACTILIFE” offending the trade mark “Actilife”. Respondents are committing infringement and passing off their products. Alleging infringement of their registered trade mark, Appellant-Plaintiff has filed the suit for permanent injunction restraining the Respondents from infringing the registered trade mark “Actilife” and also passing off of their goods. In the suit, Appellant-Plaintiff has filed two applications (O.A. Nos. 1170 & 1171 of 2010) seeking (i) an interim order of injunction restraining the Respondents from committing infringement of their registered trade mark “Actilife” and (ii) an interim order of injunction restraining the Respondents from passing off their nutraceutical products by using the trade mark “Actilife”. 3. Resisting the applications, 1st Respondent has filed counter contending that the trade mark “ACTILIFE” is registered with respect to “malt” under No. 1707631 in Class 31 w.e.f. 8.7.2008. Being a registered proprietor of the trade mark with respect to “malt” in Class 31, the 1st Respondent has exclusive right to use the trade mark “ACTILIFE” with respect to “malt” products to the exclusion of all others including the Appellant. Since 1st Respondent is also a registered proprietor of the trade mark “ACTILIFE” under Class 31, Appellant is not entitled for injunction against the Respondents with respect to infringement of registered trade mark. Respondents 2 and 3 adopted the counter filed by the 1st Respondent. 4. Since 1st Respondent is also a registered proprietor of the trade mark “ACTILIFE” under Class 31, Appellant is not entitled for injunction against the Respondents with respect to infringement of registered trade mark. Respondents 2 and 3 adopted the counter filed by the 1st Respondent. 4. Upon consideration of the rival contentions, the learned single Judge held that by virtue of Section 28 (3) and Section 30(2) (e) of Trade Marks Act, Appellant is not entitled to any protection as against the Respondents who are the registered proprietor of the trade mark “ACTILIFE” under Class 31. Pointing out that the goods falling under Classes 30 and 31 in the International Classification of goods and services are no doubt exactly the same as those falling under Classes 30 and 31 in IV Schedule to the Trade Marks Act, 1999, the learned Judge observed that “the distinction between Class 30 and Class 31 is not very strictly made out by the manner in which goods are classified under these two classes and in such circumstances, benefit of doubt would naturally go to the Respondent in an application for interim order of injunction especially in a case where both the parties are the registered proprietors of the trade mark” and dismissed both the applications. However, learned Judge observed that it would be open to the parties to work out their remedies available under the Trade Marks Act. 5. Challenging the impugned order, Mr. T.V. Ramanujam, learned senior counsel for Appellant has contended that Appellant had obtained registration of their trade mark “Actilife” in Class 5 [Pharmaceuticals] with effect from 3.9.2004 under No. 1306695 and are in prior user of the trade mark even from October 2005; whereas the Respondents have obtained registration of the mark “ACTILIFE” only under Class 31 on 14.9.2010 ( w.e.f. 8.7.2008) and Appellant being the prior user, Appellant-Plaintiff has proved the prima facie case, learned Judge ought to have granted injunction in respect of infringement trade mark “Actilife”. 6. Contention of Appellant is that Appellant has honestly conceived and adopted the trade mark “Actilife” and has been using from 7.10.2005; whereas the trade mark “ACTILIFE” under Class 31 was obtained by the 1st Respondent only on 14.9.2010. 6. Contention of Appellant is that Appellant has honestly conceived and adopted the trade mark “Actilife” and has been using from 7.10.2005; whereas the trade mark “ACTILIFE” under Class 31 was obtained by the 1st Respondent only on 14.9.2010. It was further submitted that trade mark application No. 1707630 in Class 30 filed on 8.7.2008 by the 1st Respondent‘s predecessor in title as a proposed mark was refused by the Registrar of Trade Marks. Learned senior counsel would further contend that “malt” for human consumption falls under Class 30 and the 1st Respondent has obtained registration only in Class 31 and the learned Judge fell in error in taking into consideration of the registration obtained by the 1st Respondent‘s predecessor in Class 31 which is meant for animal consumption and wrongly applied the provisions of Section 28(3) and Section 30(2) (e) of Trade Marks Act. 7. Mr. R. Muthukumarasami, learned senior counsel foe Respondents has contended that 1st Respondent is a registered proprietor of the trade mark “ACTILIFE” in Class 31 with respect to “malt”. It was further contended that under Section 30(2) (e) read with Section 28 (3) of Trade Marks Act, 1999, one registered proprietor cannot file a suit for infringement against another registered proprietor and therefore, Appellant-Plaintiff cannot seek for injunction against the 1st Respondent with respect to infringement of registered trade mark. 8. Admittedly, Appellant-Plaintiff is the registered proprietor of the trade mark “Actilife” in Class 5 under No. 1306695 w.e.f. 3.9.2004 in respect of Pharmaceuticals. Appellant had obtained registration of the mark “Actilife” in Class 5 (Pharmaceuticals) on 10.11.2005 w.e.f. 3.9.2004. 9. Cadila Health Care Limited and Carnation Nutra-Analogue “Foods Limited formed the Zydus Group of Companies. Cadila Health Care Limited was engaged in both pharma and non-pharma products. The non-pharma business was carried on by the Consumer Products Division of Cadila Health Care Limited. Carnation Nutra-Analogue Foods Limited was engaged in manufacturing and marketing of consumer products like “Nutralite” a low calorie margarine. By the order dated 23.10.2008, High Court of Gujarat at Ahmedabad approved the Scheme of restructuring of business of Cadila Health Care Limited with Carnation Nutra-Analogue Foods Limited. As a consequence to the Scheme all trade marks used for Consumer Products Division business along with pending litigation has been vested in the said Carnation Nutra-Analogue Foods Limited. By the order dated 23.10.2008, High Court of Gujarat at Ahmedabad approved the Scheme of restructuring of business of Cadila Health Care Limited with Carnation Nutra-Analogue Foods Limited. As a consequence to the Scheme all trade marks used for Consumer Products Division business along with pending litigation has been vested in the said Carnation Nutra-Analogue Foods Limited. As per the approved Scheme, all assets, registered trade marks as well as marks pending registration of Cadila Health Care Limited (transferor company) were transferred and vested in Carnation Nutra-Analogue Foods Limited (transferee company) The relevant trade marks registered or applied for registration so transferred are: SL No. Class Trademark Trademark No. Status P/R Date of Application User since (as mentioned in appln.) 1 29 ACTILIFE 1707632 P 8.7.2008 Proposed to be used 2 30 ACTILIFE 1707630 P 8.7.2008 Proposed to be used 3 31 ACTILIFE 1707631 P 8.7.2008 Proposed to be used 4 05 ACTILIFE 1666846 P 19.3.2008 Proposed to be used 5 29 ACTILIFE 1666855 P 19.3.2008 Proposed to be used 6 30 ACTILIFE 1666854 P 19.3.2008 Proposed to be used 7 31 ACTILIFE 1666853 P 19.3.2008 Proposed to be used 8 32 ACTILIFE 1666852 P 19.3.2008 Proposed to be used After approval of the Scheme of Arrangement, on 5.1.2009, Carnation Nutra-Analogue Foods Limited obtained approval and permission to change of its name to Zydus Wellness Limited (1st Respondent). Trade mark “ACTILIFE” was registered with respect to “malt” under No.1707631 in Class 31 on 14.9.2010 with effect from 8.7.2008. 10. Class 30 in IV Schedule to the Trade Marks Act, 1999 reads as under:- “Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-power, salt, mustard; vinegar, sauces (condiments); spices; ice.” Class 31 in IV Schedule to the Trade Marks Act, 1999 reads as under:- “Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.” 11. Appellant is the registered proprietor of the mark “Actilife” in Class 5 (Pharmaceuticals); whereas 1st Respondent is the registered proprietor of the mark “ACTILIFE” under Class 31. Section 28 of Trade Marks Act deals with exclusive rights conferred by registration. Appellant is the registered proprietor of the mark “Actilife” in Class 5 (Pharmaceuticals); whereas 1st Respondent is the registered proprietor of the mark “ACTILIFE” under Class 31. Section 28 of Trade Marks Act deals with exclusive rights conferred by registration. Registration of trade mark If valid shall give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered. No doubt when a person gets his trade mark registered, as per Section 28, he acquires valuable right by reason of such registration and registration of his trade mark exclusive right to use of the trade mark in connection with the goods in respect of which it is registered. But, the rights conferred under Section 28 of the Act is subject to the other provisions of the Act. 12. Section 30 specifically enumerates circumstances where use of a registered trade mark by any person for the purpose of identifying the goods or services as those of the proprietor will not constitute infringement. As per Section 30(2) (e) of the Act, use of trade mark in exercise of the right given by registration under Section 12 of the Act will not constitute infringement. As per Section 28(3) read with Section 30(2) (e) of the Act, where there are two or more persons registered for same or similar mark in respect of the same goods or services, the exclusive right to the use of any of those marks shall not operate against each other. In view of the protection available under. Section 28(3) read with Section 30(2) (e) of Trade Marks Act, Appellant-Plaintiff cannot allege infringement and seek for injunction restraining the Respondents from using their registered mark “ACTILIFE” in respect of “malt”. 13. Learned senior counsel for appellant then contended that Class 31 deals with foodstuffs for animals among other products and the reference “malt” in Class 31 is not for human consumption. Drawing our attention to the International Classification of goods and services, learned senior counsel for Appellant would contend that in respect of Class 31 published in the International Classification of goods and services, “malt” is for “brewing and distilling”. Drawing our attention to the International Classification of goods and services, learned senior counsel for Appellant would contend that in respect of Class 31 published in the International Classification of goods and services, “malt” is for “brewing and distilling”. It was further submitted that only in respect of Class 30 of International Classification of goods and services, reference is made in respect of “malt” for human consumption. According to appellant, the mark registered by Cadila Healthcare Limited in respect of Class 31 is, only meant for “animal foodstuffs” and not for “human consumption”: It was further argued that taking advantage of the wrong registration by Cadila Heal care Limited under Class 31,- Respondents are misleading the public in using the mark for selling the health drink for human consumption under the mark “ACTILIFE”. 14. Refuting the contentions of Appellant, learned senior counsel for Respondents has contended that International Classification of goods and services is only a guidance and it cannot take a superior position to the Indian Classification of goods and services. Learned senior counsel would further submit that Schedule IV of Trade Mark Act, 1999 does not make distinction between “malt” for human consumption and “malt” for animal consumption in Class 31. Learned senior counsel would further submit that registration of the trade mark “ACTILIFE” has been obtained by the 1st Respondent for “malt” and therefore, 1st Respondent has right to use the trade mark “ACTILIFE” for “malt” based drink and is entitled to use the registered mark. 15. As pointed out by the learned Judge, Classes 30 and 31 of International Classification of goods and services are exactly the same as the goods falling under Classes 30 and 31 of IV Schedule to Trade Marks Act. As rightly contended by the learned senior counsel for Respondents, list of goods in International Classification of goods and services is only a guidance. The Trade Mark Rules clarify that the “goods and services” mentioned in IV Schedule only provide a means by which the general content of numbered International Classes can be quickly identified and that they are intended to be exhaustive. As per Section 7 of Trade Marks Act, the Registrar shall classify the goods and services “as far as may be” in accordance with the International Classification of goods and services for the purpose of registration of the trade marks. As per Section 7 of Trade Marks Act, the Registrar shall classify the goods and services “as far as may be” in accordance with the International Classification of goods and services for the purpose of registration of the trade marks. As per Section 7 (2) of the Act, “any question arising as to the class within which any goods or services fall shall be determined by the Registrar and his decision shall be the final”. Thus sub-section (2) of Section 7 of the Act clearly empowers the Registrar to determine any question as to the classes within which any goods or services fall. If at all the Appellant has any grievance over the registration of the mark “ACTILIFE” under Class 31 and its user for human consumption, it is for the Appellant-Plaintiff to move the Registrar and it is not in this Court to examine the propriety of registration of the mark and whether there is prior user of the registered mark. Learned Judge has rightly observed that it is open to the parties to work out their remedies available under the Act. As such, we do not find any ground to interfere with the order of learned single Judge declining to grant injunction in respect of infringement. 16. In respect of Passing off, learned senior counsel for Appellant contended that because of Appellant prior user from 2005 and marketing their products/tablets “Actilife” and Respondents having obtained the registration of the trade mark in Class-31 for the product “malt” which is for “brewing and distilling” and since the Plaintiff is the prior user of the registered trade mark, the Respondents are selling the health drink with the mark “ACTILIFE” and passing off the goods as that of the Appellant and therefore, injunction ought to have been granted under passing off. Placing reliance upon Sony Kabushiki Kaisha v. Mahaluxmi Textile Mills (2009) 41 PTC 184 (Cal-FB) , learned senior counsel for Appellant further submitted that in view of the goodwill and reputation earned by the Appellant, there is likely to be confusion in the mind of consumers as regards the source and that the consumers are likely to be misled and to believe that the health drink is the product of Appellant and therefore, the Appellant is entitled to injunction for passing off. 17. 17. Per contra, learned senior counsel for Respondents would contend that injunction cannot be granted for passing off in respect of different goods when the class of purchasers or user of goods are entirely different. Learned senior counsel would further submit that Appellant‘s product being tablets coming under the category of pharmaceuticals whereas the Respondents‘ product is “malt – health drink”, absolutely there is no similarity of goods and the purchasers and the mode of purchase are entirely different and there cannot be an injunction for passing off. 18. Principles of passing off has been well considered by the Hon‘ble Supreme Court in Cadila Health Care Limited AIR 2001 SC 1952 : (2001) 5 SCC 73 wherein the Hon‘ble Supreme Court has held as under: “35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (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 goods in respect of which they are used as trade marks. (d) The similarity in the nature, character and performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (f) The mode of purchasing the goods or placing orders for the goods. (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.” 19. Referring to Cadila health Care Limited (supra) and other decisions and considering the question whether the action for passing is maintainable even in respect of different class of goods, in Sony Kabushiki Kaisha v. Mahaluxmi Textile Mills (supra), the Full Bench of Calcutta High Court has held as under:- “27. ....in the case of Cadila Health Care Ltd. (supra); the similarity in the nature, character and performance of the goods of the rival traders would be one of the factors in adjudication of a passing of action. ....in the case of Cadila Health Care Ltd. (supra); the similarity in the nature, character and performance of the goods of the rival traders would be one of the factors in adjudication of a passing of action. In our view, it is one of the very important factors which the Court should consider while deciding a claim based on passing off. But in the event the nature, character of the goods are different, this very fact should not automatically result in failure of an action founded on the tort of passing off.” Applying the principles laid down in Cadila Health Care Limited (supra) to the case on hand, we do not find any similarity in the nature of the goods of both Appellant and Respondents. The products of the Appellant is “vitamin tablets” which are purchased perhaps under the prescription of Doctors and the tablets of the Appellant could be purchased only from the medical stores; whereas the Respondents‘ “health drink” could be purchased from any retail stores. The class of purchasers who are likely to buy the goods of both Appellant and Respondents are well informed and they would exercise proper care in purchase of the goods. Considering the facts and circumstances of the case, we do not think any deception in marketing the products of the Respondents and the learned Judge has rightly declined to grant injunction for passing off. We do not find any ground to interfere with the order of learned single Judge as far as passing off also. 20. In the result, both the appeals are dismissed. Consequently, connected M.P. is closed. No costs. As pointed out by the learned single Judge, it is open to the parties to workout their remedies available under the Act. Appeals dismissed.