Judgment 1. The plaintiffs/applicants pray for grant of ad-interim injunction, restraining the respondents, their manufacturers, marketers, distributors, stockists, promoters, servants, agents, retailers, legal representatives, job-workers or any other person claiming under it from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in medicinal and pharmaceutical preparations infringing 1st applicant registered trademark ZEMPRED by use of deceptively similar trademark ZENPRIDE or any mark deceptively similar to 1st applicant registered trademark ZEMPRED in any other manner whatsoever, pending disposal of the suit. 2. In the affidavit filed in support of the application, it is pleaded as under: i) That the 1st plaintiff/applicant is a pharmaceutical company engaged in the manufacture of bulk pharmaceutical drugs. It has its registered office at F.P.145 Ram Mandhir Road, 1st Floor, Vile Parle (East), Mumbai. The 1st applicant is renowned manufacturer of various drugs, ointments, formulations, pills, lotions, injections etc. The 1st applicant has been offering their product under various brands, adopted various marks in the course of its business, which enjoy great reputation. The 1st Applicant enjoys a very high reputation for its medicinal preparations because of the excellent quality and efficacy. The 1st Applicant is one of the leading manufacturers of pharmaceutical preparations and its products enjoy great reputation amongst the medical practitioners, trade and consuming public and the 1st Applicant’s preparations are sold extensively all over the country on an extensive scale. ii) That the 2nd Applicant is an internationally renowned pharmaceutical company, with presence in over 30 countries. The 2nd Applicant is involved in making and marketing active pharmaceutical ingredients and in branded markets many of 2nd Applicant’s products are prescribed in several chronic therapy areas like cardiology, ophthalmology, neurology, gastroenterology, diabetology, respiratory etc. The 2nd applicant is an established and well-known pharmaceutical company in India which markets drugs and formulations in India since the year 1983 and was subsequently listed in the main stock exchanges in the year 1994, with an issue of Rs.550 crores in the equity market. The 2nd Applicant enjoys a very high reputation for the products manufactured and distributed by them because of the excellent quality and efficacy. The 2nd Applicant is also equipped with exceptionally wide marketing network with trained professionals committed to wide reach of its product across the length and breadth of Indian subcontinent. The 2nd Applicant enjoys a very high reputation for the products manufactured and distributed by them because of the excellent quality and efficacy. The 2nd Applicant is also equipped with exceptionally wide marketing network with trained professionals committed to wide reach of its product across the length and breadth of Indian subcontinent. Owing to its phenomenal dynamic marketing techniques, the 2nd Applicant’s products are sold extensively all over the country on an extensive scale. iii) That 1st Applicant has registered several trademarks for their pharmaceutical preparations and is marketing the products under different brand names. In the course of its business, the 1st applicant adopted the mark ZEMPRED in respect of their preparation for treatment of sun burn and psoriasis. The 1st applicant first adopted the mark ZEMPRED in the year 2005. The mark ZEMPRED is unique and distinctive, coined and used for the first time by the 1st applicant in respect of medicinal preparations. We state that the mark ZEMPRED has been extensively used in medicinal and pharmaceutical products for treatment of sun burn and psoriasis since 2005 and are extensively renowned through out the market and amongst practitioner for the quality and efficacy of their products. The 1st Applicant has garnered an enviable reputation among dermatologists, skin clinics and the brand recognition among practitioners, skin clinics and users of such drugs is irrefutable through out the country. iv) That the 1st applicant with a view to protect its unique and distinctive mark ZEMPRED statutorily, applied for and obtained registration for the said mark under no. 1406844 in class 5 in respect of “Medicinal and Pharmaceutical preparations and substances included in class 5”. The said registration is valid and subsisting as on date. Therefore, the 1st applicant has been statutorily recognized as the proprietor of the mark ZEMPRED and has been given all consequent rights arising therefrom including the right to use the trade mark to the exclusion of others and the right to take action against infringers of its statutory rights in respect of the said mark. Further, the medicinal preparation of the applicant under the trademark ZEMPRED is manufactured under license issued by the appropriate drug control authorities and the same has been regularly renewed and subsisting till date. We state that with prior adoption and continuous use, the mark ZEMPRED has attained tremendous goodwill and reputation among the trade and public. Further, the medicinal preparation of the applicant under the trademark ZEMPRED is manufactured under license issued by the appropriate drug control authorities and the same has been regularly renewed and subsisting till date. We state that with prior adoption and continuous use, the mark ZEMPRED has attained tremendous goodwill and reputation among the trade and public. v) That the 2nd Applicant provides their formulation to the 1st applicant for manufacturing medicinal products and controls quality of the same at all levels. The 2nd applicant ensures, global standard in formulations, processing, production, packing and distribution. In view of the standard business arrangement between the 1st and 2nd applicant, the 2nd applicant is involved in promotion, dealing and marketing of the medicinal preparations manufactured by the 1st applicant under the mark ZEMPRED. The 1st applicant has granted a license to the 2nd applicant to use the mark ZEMPRED vide License agreement. vi) That till June 2010, the 1st applicant was involved in manufacture, marketing and distribution of the medicinal preparations under the mark ZEMPRED. Subsequently, the 1st Applicant permitted 2nd Applicant to use the mark ZEMPRED vide license agreement. The sales invoices of the 1st applicant and 2nd Applicant are filed along with the plaint as documents, which prove that the applicants are continuously using the said mark ZEMPRED to the exclusion of others. As stated hereinabove, the mark ZEMPRED, in view of its unique and distinctive nature has caught the minds of trade and public, who associate the said mark only with medicinal products manufactured by the 1st applicant and its permitted user, i.e., the 2nd Applicant. The medicine under the said mark ZEMPRED has also been well received among customers, patients, doctors and skin clinics in view of its high efficacy and pharmacokinetics. vii) That the Applicants market the medicinal formulation under the trademark ZEMPRED through a well organized sales network of dealers/stockiests all over India on an extensive basis. The sale of products bearing the trade mark ZEMPRED has steadily increased since its launch in the year 2006. The Applicants have acquired very high reputation and goodwill for their medicinal formulations sold under the trademark ZEMPRED in varying strength. The sale of products bearing the trade mark ZEMPRED has steadily increased since its launch in the year 2006. The Applicants have acquired very high reputation and goodwill for their medicinal formulations sold under the trademark ZEMPRED in varying strength. The sales figure of the Applicants’ pharmaceutical preparation under the mark ZEMPRED for the last five years period is given below:- viii) That the Applicants have also spent a huge amount for popularizing its said preparations under the trademark ZEMPRED by circulation of trade literature, pamphlets, product manuals, visual aid, strategy booklet, letters/mailers addressed to hundreds of doctors etc. The Applicants’ medicinal preparations under the mark ZEMPRED have already been well received in the pharmaceutical trade. The sales promotional expenditure incurred in respect of the mark ZEMPRED runs to crores of rupees. ix) By virtue of extensive publicity, long continuous use of the trademark ZEMPRED in respect of medicinal preparations, the mark has come to be identified only with the Applicants. The trademark ZEMPRED is an invented word coined by the 1st Applicant and therefore is the exclusive property of the 1st Applicant. The 2nd applicant is permitted user of the trademark ZEMPRED using the mark for the purpose of marketing and promotion of the product under standard business arrangement. In view of wide use and substantial sales, the trademark ZEMPRED has earned tremendous goodwill and enviable reputation in the market. Further in view of the registration of the trademark, the 1st Applicant has exclusive proprietary rights conferred by the statute in respect of the trademark ZEMPRED to the exclusion of others. x) That the respondents are adopting the mark ZENPRIDE, which is deceptively similar to 1st applicant's prior adopted and registered trademark ZEMPRED and the marks are visually, phonetically and structurally similar to that of the applicants/plaintiffs. This will result in deception among trade and public in view of such similarity. Thus, it is pleaded, that defendants have infringed applicants' registered trademark. xi) That it came to its knowledge, that the defendants are using the identical trademark ZENPRIDE, when application was filed by the 1st respondent for registration of the mark. The 1st applicant thereafter issued legal notice, asking them to withdraw the trademark application with similar of trademark of the applicants. But in reply, they only denied. xi) That it came to its knowledge, that the defendants are using the identical trademark ZENPRIDE, when application was filed by the 1st respondent for registration of the mark. The 1st applicant thereafter issued legal notice, asking them to withdraw the trademark application with similar of trademark of the applicants. But in reply, they only denied. xii) That inspite of opposition, respondents are marking their trademark under the Trade name "ZENPRIDE", on the plea that "ZENPRIDE" is used for completely treatment, i.e. for treatment of psychoses, particularly negative symptoms of schizophrenia, anxiety disorders, dysthymia, vertigo, dyspepsia, irritable bowel syndrome and premature ejaculation with completely different generic drug, i.e. Levosulpiride and different components/composition that of plaintiffs/applicants. xiii) That the respondents launched their medicinal preparation bearing the mark ZENPRIDE only recently to their knowledge. The adoption and use of the mark ZENPRIDE is unquestionably subsequent to the invention and use of the mark ZEMPRED by the Applicants since the year 2005. The 1st Applicant is the undisputed prior adopter and use of the trademark ZEMPRED. The Applicants’ preparations bearing the mark ZEMPRED are well reputed and well established in the market. The respondents have no right to use the almost identical / deceptively similar mark ZENPRIDE as the same amounts to infringement of 1st applicant registered trademark ZEMPRED. Being a much later entrant to the market, the respondents are deemed and/or ought to have known the 1st applicant’s prior adopted and registered trademark ZEMPRED which has been continuously used since 2005. The above fact clearly shows the malafide intention on part of the respondents to steal the bulwark and palladium created by the applicant through sheer hard work over the years and to ride on the goodwill and reputation of the applicants. xiv) That the respondents are using the mark ZEMPRED for medicinal preparations prescribed for treatment, viz., used in the treatment of psychoses, particularly negative symptoms of schizophrenia, anxiety disorders, dysthymia, vertigo, dyspepsia, irritable bowel syndrome and premature ejaculation, which is diametrically different from the applicant’s product. It is an accepted phenomenon that the doctor’s handwriting is usually illegible. In view of close phonetic and structural similarity between the two marks, there is every possibility and probability that respondents’ ZENPRIDE is palmed off as and for the applicants’ ZEMPRED tablets, which may lead to drastic and dire consequences. It is an accepted phenomenon that the doctor’s handwriting is usually illegible. In view of close phonetic and structural similarity between the two marks, there is every possibility and probability that respondents’ ZENPRIDE is palmed off as and for the applicants’ ZEMPRED tablets, which may lead to drastic and dire consequences. It is a settled principle of law that confusion and deception in case of medicinal preparations would lead to drastic and dire consequences as medicines are not sweets to be lightly considered. The respondents have deliberately adopted an almost identical/deceptively similar mark ZENPRIDE, which is nothing but a slavish imitation of applicants’ prior adopted and well reputed trademark ZEMPRED, which is capable of causing confusion and deception amongst the trade and public, completely ignoring the dangerous consequences that could arise there from. Courts have time and again held that even prescription drugs are sold with orders placed in phone and several drug stores such drugs are sold without even producing the prescription of the doctor. In such scenario, the chances of the respondents’ ZENPRIDE being sold as and for the applicants’ ZEMPRED are alarmingly bright. Such use of deceptively similar mark ZENPRIDE by respondents is bound to cause confusion as to the trade origin of respondents’ products. An average person with imperfect recollection would not be in a position to differentiate between the two deceptively similar marks and there is every likelihood of the respondents’ mark ZENPRIDE being misspelt or misread as the applicants’ trademark ZEMPRED by the pharmacists/chemists while deciphering the handwriting of the prescription of the doctor because of the high degree of resemblances in both the marks phonetically, visually and structurally. Further, it is settled position of law that even doctors or chemists are not well versed with the nuances of brand names and are as such gullible to be confused in case of illegal acts such as in the instant case. The respondents have deliberately adopted the deceptively similar mark ZENPRIDE with a view to cause confusion and deception and to cause large scale disastrous effects among the trade and public. Hence apart from the loss caused to the business and goodwill of the applicants, public policy warrants restraining the respondents’ adoption and use of the almost identical mark ZENPRIDE in respect of a different drug. xv) That the marks ZEMPRED and ZENPRIDE are phonetically, visually and structurally similar. Hence apart from the loss caused to the business and goodwill of the applicants, public policy warrants restraining the respondents’ adoption and use of the almost identical mark ZENPRIDE in respect of a different drug. xv) That the marks ZEMPRED and ZENPRIDE are phonetically, visually and structurally similar. The respondents cannot escape legal liability by merely altering / adding few characters in the middle of applicants’ mark. Substantial parts of both marks remain one and the same and when seen as whole, the marks are almost identical / deceptively similar. Such adoption by the respondents leads to confusion and deception upon the minds of trade and public. The manner of use of trademark ZENPRIDE by the respondents is also patently for the sole intention of creating a wrong impression in the minds of public as to the origin of the goods viz., the trade and public would assume that the respondents’ products also emanate from the applicants. The respondents have thus with malafide and patently dishonest intention adopted the mark ZENPRIDE which is confusingly similar to 1st applicant’s registered trademark ZEMPRED. The trademark ZEMPRED has been widely publicized and is well known among the medical practitioners and traders. The use of the respondents’ mark ZENPRIDE which is nothing but a copy of the 1st applicant’s registered trademark ZEMPRED, with trivial and insignificant changes is calculated to deceive the trade and public. Thus the use of almost identical/deceptively similar mark ZENPRIDE by the respondents amount to infringement of 1st Applicant’s registered trademark ZEMPRED. xvi) That the applicants’ medicinal and pharmaceutical preparations bearing the trademark ZEMPRED are being sold throughout India including the city of Chennai. In the circumstances, before adopting the almost identical/deceptively similar trademark ZENPRIDE, the respondents were and/or ought to have been aware of the Applicants’ drugs being sold under the trademark ZEMPRED and wide and enviable reputation acquired by the applicants’ said drug. The respondents have therefore knowingly, deliberately and with no saintly intent adopted the impugned trademark ZENPRIDE. The act of respondents in adopting a deceptively similar trademark ZENPRIDE is fraught with malice and as such the respondents ought to be restrained from using the impugned mark in respect of their drugs/medicinal preparations. 3. The respondents have therefore knowingly, deliberately and with no saintly intent adopted the impugned trademark ZENPRIDE. The act of respondents in adopting a deceptively similar trademark ZENPRIDE is fraught with malice and as such the respondents ought to be restrained from using the impugned mark in respect of their drugs/medicinal preparations. 3. Learned counsel for the plaintiffs/applicants contended, that the applicants have been using the mark ZEMPRED continuously and uninterruptedly from the year 2006, while the respondents entered the market only from March 2012 to the knowledge of the applicants. With a long and continuous use of the mark coupled with the high quality pharmaceutical products manufactured under the mark ZEMPRED, the applicants have acquired great reputation and goodwill and the nefarious activities of the respondents in infringing the 1st applicant’s registered mark, will have an adverse impact on their business and cause confusion in the minds of trade and public. We submit that should the respondents be allowed or permitted to continue with their wrongful and illegal acts as aforesaid, the applicants’ goodwill and reputation with the public at large as also the market would be seriously deteriorated. In any event being a later entrant to the market, the respondents cannot enjoy the benefits of the bulwark and palladium established by the applicants with the continuous and long use of the mark. In the circumstances, unless the reliefs sought for hereunder are granted, the applicants would be put to grave hardship and would be seriously prejudiced. In such event, the balance of convenience clearly rests in favour of the applicants. 4. Inspite of opportunity, no counter has been filed, nor there was representation on behalf of the respondents/defendants, when the case was called for hearing. 5. Learned counsel for the plaintiffs/applicants in support of this application has placed reliance on the judgment of this Court in O.A.Nos.548 and 549 of 2011 in C.S.No.436 of 2011, decided on 02.12.2011, wherein this Court was pleased to lay down as under: "28. It may be pertinent to note here that these judgments cannot be said to lay down any law, in view of the judgment of the Hon'ble Supreme Court in the case of Cadila Health Care Limited vs. Cadila Pharmaceuticals Limited (supra), wherein the Hon'ble Supreme Court has been pleased to lay down that the drugs being sold under prescription, is not sufficient to prevent confusion, which is likely to occur. The Hon'ble Supreme Court had gone to the extent of holding that in case of medical productions, test to be applied for adjudging the violation of Trade Mark law cannot be at par with cases involving non medicinal products. A stricter approach is adopted, while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer." 6. From the pleadings and contention referred to above, it is proved on record, that the trademark of the respondents, i.e., "ZENPRIDE" is identical and phonetically similar to that of the applicants/plaintiffs, therefore, act of respondents amounts to infringement of the registered trademark, which entitles the plaintiffs/applicants the relief claimed. 7. Consequently, this application is ordered as prayed for. No costs.