JUDGMENT : S.J. Vazifdar, J. This is an action for infringement and passing off. The plaintiff is the registered proprietor of the word mark "OSTONATE". The mark is registered under class 5 i.e. in respect of medicinal and pharmaceutical preparations. The application for registration was made on 24th July, 1997. The application was advertised for acceptance. There was no opposition thereto. The same proceeded to registration and the registration certificate was granted to plaintiff No. 1 on 22nd April, 2005. The registration was, therefore, with effect from the date of its application i.e. 24th July, 1997. The plaintiff started using the mark from January, 2009. Plaintiff No. 2 uses the mark as a licencee of plaintiff No. 1. The defendants have used the mark "OSTONAT" since the year 2003. The deceptive similarity, between the marks phonetically and visually, is patent. The absence of the letter "E" in the defendant's mark makes no difference. 2. The plaintiffs products sold under the said mark "OSTONATE" are calcium tablets. The defendants' products sold under the deceptively similar mark "OSTONAT" are kits containing 4 alendronic acid tablets USP & 24 calcium and colecalciferol tablets BP. The need to exercise greater caution against deception is, therefore, apparent. 3. The question of the plaintiff's reputation and goodwill in its mark "OSTONATE" is irrelevant to the action insofar as it concerns passing off for the defendants used the impugned mark with effect from the year 2003 i.e. prior to the plaintiff's use of their mark from January, 2009. 4. The plaintiff, however, is entitled to maintain and succeed in its action for infringement. 5. On 7th July, 2003, defendant No. 2 applied for registration of the impugned mark "OSTONAT" stating that it was proposed to be used. The plaintiff filed an opposition thereto. In September, 2007, the defendant filed a counter to the opposition proceedings claiming user of the mark from the year 2003. 6. The defendant's mark "OSTONAT" is not merely deceptively similar, but almost identical to the plaintiff's registered mark "OSTONATE". Had the defendant taken search in the Registry, it would have come to know of the plaintiff's mark. Dr. Tulzapurkar, the learned senior counsel appearing on behalf of the plaintiff rightly submitted that in that event, the defendant's use of the mark would be dishonest. Had the defendant taken search in the Registry, it would have come to know of the plaintiff's mark. Dr. Tulzapurkar, the learned senior counsel appearing on behalf of the plaintiff rightly submitted that in that event, the defendant's use of the mark would be dishonest. He also rightly submitted that if on the other hand had the defendant not taken search in the Registry, it must be held to be negligent. Either way, therefore, the defendant's adoption of the mark cannot be held to be bona fide and, in any event, the use thereof cannot be a defence to the action for infringement. Dr. Tulzapurkar's reliance in this regard upon the judgment of a learned single Judge of this Court in Bal Pharma Limited v. Centaur Laboratories Pvt. Ltd. & Anr., 2002 (24) PTC 226 is well founded. The learned Judge held:- 9. Then we turn to the question of delay and acquiescence. Mr. Tulzapurkar, learned Counsel appearing for the Respondent cites the judgment of the Supreme Court in Power Control Appliances and Others Vs. Sumeet Machines Pvt. Ltd, (1994) 2 JT 70 , wherein the Supreme Court approvingly referred to the judgment of the Appeal Court in England in Electrolux LC v. Electrix and quoted a passage therefrom in paragraph 34 of its judgment. Our attention was also drawn to the judgment in Electrolux itself. Reference to the judgment in Electrolux shows that there is no hard and fast rule that delay per se would defeat an application for interlocutory injunction. The judgment indicates that in a situation where the defendant to an action has been using the mark, even if concurrently, without making himself aware of the fact as to whether the same mark is the subject-matter of the registration and belongs to another person, the first person cannot be heard to complain for he has been using it negligently inasmuch as he has not take the elementary precaution of making himself aware by looking at the public record of Registrar as to whether the mark in question is the property of another. If, however, he had taken search and, knowing full well that the mark was the property of another person, continues to use the mark, then he runs the risk of a registered proprietor challenging his action for infringement and merely because it is done at a subsequent stage, he cannot be heard to complain on the ground of delay. Further discussion in the judgment shows that in order to deny an interlocutory injunction, the delay must be such as to have induced the defendant or at least to have lulled him into a false sense of security to continue to use the trade mark in the belief that he was the monarch of all he surveyed. In our judgment, such are not the circumstances here. We are not satisfied from the record that a search was taken of the registry by the Appellant to assure itself that there was no other person who owned the mark 'MICRODINE'. Assuming that the search was taken, and the Appellant has done it consciously, then the Appellant has to thank itself for having gambled by investing large amounts in a risky venture. Either way, we do not think that the defence can succeed, at this stage, at least. 7. Even assuming that the defendant adopted the mark bona fide, it would not affect the plaintiff's action for infringement. Mr. Grover, the learned counsel appearing on behalf of the defendants himself submitted that the plaintiff's product is only a calcium supplement whereas the defendants' product is sold in a kit and is meant to treat osteoporosis. The nature of the drugs being different, it is even more important for the Court to ensure that the public is not deceived as that could lead to adverse consequences by a person consuming the wrong drug. In Cadilla Health Care Ltd. v. Cadilla Pharmaceuticals Ltd., 2001 PTC 541, it was held: 28. Here it will be useful to refer to the decision of Morgenstern Chemical Co. case where it has been held as under:- (5) In the field of medical products, it is particularly important that great care be taken to prevent any possibility of confusion in the use of trade marks. Here it will be useful to refer to the decision of Morgenstern Chemical Co. case where it has been held as under:- (5) In the field of medical products, it is particularly important that great care be taken to prevent any possibility of confusion in the use of trade marks. The test as to whether or not there is confusing similarity in these products even if prescribed and dispensed only by professionally trained individuals does not hinge on whether or not the medicines are designed for similar ailments. The rule enunciated by Judge Helen in Cole Chemical Co. v. Cole Laboratories, DC Mo 1954, 118 F Supp 612, 616, 617, 101, USPQ 44, 47, 48 is applicable here. The plaintiff and the defendant are engaged in the sale of medical preparations. They are for ultimate human consumption of use,... They are particularly all for ailments of the human body. Confusion in such products can have serious consequences for the patient. Confusion in medicines must be avoided. Prevention of confusion and mistakes in medicines is too vital to be trifled with. The observations made by Assistant Commissioner Leeds of the Patent Office in R.J. Stransenburgh Co. v. Kenwood Laboratories, Inc, 106 USPQ 379 (1955) are particularly apt, that: Physicians are not immune from confusion or mistake. Furthermore, it is common knowledge that many prescriptions are telephoned to the pharmacists and other are handwritten, and frequently handwriting is not unmistakably legible. These facts enhance the chances of confusion or mistake by the pharmacists in filling the prescription if the mark appear too much alike when handwritten or sound too much alike when pronounced, The defendant concedes that physicians and pharmacists are not infallible but urges that the members of these professions are carefully trained to detect difference in the characteristics of pharmaceutical products. While this is doubtless true to dos (sic) not open the dos to the adoption by manufacturers of medicines of trade marks or names which would be confusingly similar to anyone not exercising such great care. For physicians and pharmacists are human and in common with the rest of mankind are subject to human frailties. In the field of medicinal remedies the courts may not speculate as to whether there is a probability of confusion between similar names. For physicians and pharmacists are human and in common with the rest of mankind are subject to human frailties. In the field of medicinal remedies the courts may not speculate as to whether there is a probability of confusion between similar names. If there is an possibility of such confusion in the case of medicines public policy requires that the use of the confusingly similar name be enjoined (see Lambert Pharmacol Ltd. v. Bolton Chemical Corpn., DCNY 1915, 219 F 325, 326.) 8. Mr. Grover submitted that mere registration is not enough if it is not accompanied by use. He submitted that although the plaintiff's mark was registered with effect from a date prior to the use of the mark by the defendant, the plaintiff had used the mark on its products subsequent to the use of the mark by the defendants and, therefore, the plaintiff's action for infringement must fail. 9. The submission is not well founded. It is contrary to the provisions of the Trade Marks Act, 1999, By a judgment dated 1st July, 2011, in Drums Food International Pvt. Ltd. v. Euro Ice Cream & Anr, in Notice of Motion No. 1307 of 2011 in Suit No. 953 of 2011, I answered the question against Mr. Grover's submission. In that case, the plaintiff had sought a declaration that a cease and desist notice issued by the defendants was an unjustified and groundless threat and that the use of the mark by the plaintiff did not constitute an infringement of the defendant's trade mark. In that case, the defendant's mark was registered with effect from 29th November, 2001, whereas the plaintiff admittedly started using the mark thereafter in November, 2007. The question was whether the plaintiff was entitled to an injunction against the defendants, despite the fact that it admittedly started using the trade mark only on a date subsequent to the registration of the defendants mark. I answered the question against the plaintiffs. A view to the contrary would render section 18(1) otiose. Section 18(1) entitles a person to apply for registration of a mark "used or proposed to be used by him". I held:- 9. To hold that a registered mark does not take precedence over the use of the mark after the date of the application for registration would render section 18(1) otiose. The Act encourages proprietors to have their marks registered. I held:- 9. To hold that a registered mark does not take precedence over the use of the mark after the date of the application for registration would render section 18(1) otiose. The Act encourages proprietors to have their marks registered. If the plaintiff's case is upheld, it would not only be contrary to, but destroy the object of the Act as it would positively discourage registration of trade marks. 10. To uphold the plaintiff's case would cause havoc and virtually erode the rights of the proprietors of trademarks. There is always a time-lag between an application for registration of a mark and the order registering the same. Applications for registration are in public domain. They are advertised. If Mr. Tulzapurkar's submission is upheld, upon an application for registration being made and advertised, it would be possible for any person to use it immediately, thereby rendering the valuable rights of the registered proprietor in respect of the mark nugatory even before the mark is registered. This would render an essential and substantial part of the Act redundant. I further held that u/s 34, the date of registration must mean the date of the application for registration for that is the date to which the registration, when granted, will relate. 10. Mr. Graver's reliance upon the judgment of this Court in Consolidated Foods Corporation Vs. Brandon and Company Private Ltd., AIR 1965 Bom 35 , is not well founded either. He relied upon the observations of the learned Judge to the effect that all that the Trade Marks Act has done is to facilitate the mode of proof. The learned Judge held in paragraph 27 as under:- I, therefore, agree with the learned Advocate General that all that the Trade Marks Act has done is to facilitate the mode of proof. Instead of compelling the holder of a trade mark in every case to prove his proprietary right before he could ask the Court to grant him an injunction, the Trade Marks Act provides a procedure whereby by registering his trade mark the owner gets certain facilities in the mode of proving his title. For instance, under S. 23 of the Trade Marks Act, registration is to be prima facie evidence of the validity of the trade mark. It is pertinent to note that at the outset of the same paragraph, the learned Judge expressly stated as follows:- 27. For instance, under S. 23 of the Trade Marks Act, registration is to be prima facie evidence of the validity of the trade mark. It is pertinent to note that at the outset of the same paragraph, the learned Judge expressly stated as follows:- 27. At any rate, it must be remembered that in this case I am not dealing with a passing off action or an action for infringement of a trade mark which is alleged to be common property. The judgment is, therefore, of no assistance to the defendants. 11. The judgment of a learned single Judge of this Court in Agromore (P) Ltd., & Anr. v. Chembond Chemicals Limited & Anr. 2002 5 BCR 392 : 2002 (25) PTC 532 does not support Mr. Graver's submission either. In fact, the learned Judge has expressly held that under the provisions of section 33 of the 1958 Act which were similar to section 34 of the 1999 Act, the registered proprietor of the trade mark does not get a right to interfere with or restrain the use of the same mark by a person if that person was using the mark prior to the date of the registration of the trade mark in favour of the proprietor. The learned Judge has not held that in addition to the registration, the registered proprietor must also use the mark in order to maintain an action for infringement of the registered mark. 12. I see no reason to mould the reliefs and grant any accommodation to the defendants in the present case. The defendants started using the mark in the year 2003. They did so either negligently or dishonestly as stated earlier. Moreover, the defendant had made the application for registration of the impugned mark on 27th July, 2003. The plaintiffs filed an opposition thereto. There was no opposition to the registration of the plaintiff's mark. Alleging that the defendants were not aware of the registration of the plaintiffs mark, they filed an application for rectification on 22nd November, 2007. 13. There has, therefore, been no delay whatsoever on the plaintiff's part in protecting its mark. Any user by the defendants, therefore, cannot enure to their benefit whether on the ground of waiver, acquiescence or otherwise. The reference to other products with a similar prefix has not been backed by any evidence of actual user. 13. There has, therefore, been no delay whatsoever on the plaintiff's part in protecting its mark. Any user by the defendants, therefore, cannot enure to their benefit whether on the ground of waiver, acquiescence or otherwise. The reference to other products with a similar prefix has not been backed by any evidence of actual user. The claim of bona fide user of the mark by the defendant is, at the highest, relevant only on the question of damages. In the circumstances, the Notice of Motion is made absolute in terms of prayer (a). There shall be no order as to costs. This order is stayed for a period of eight weeks from today in order to enable the defendants to challenge the same.