w w w . L a w y e r S e r v i c e s . i n


M/s. Orchid Chemicals & Pharmaceuticals Limited & Another v/s M/s. United Biotech Pvt. Ltd. & Another

    Original Side Appeal Nos.290, 301 and 339 of 2008 and M.P.No.1 of 2008
    Decided On, 25 November 2008
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH
    For the Appellants: Mrs. Gladys Daniel, Advocate. For the Respondents: A.A. Mohan, Advocate.


Judgment Text
(Original Side Appeal Nos. 290 and 339 of 2008 filed under 15 of letters Patent and under Order 36, Rule 11 of The Original Side Rules, praying to set aside the Fair Order and Decreetal order dated 30.04.2008 made in O.A.No.187 of 2008 in C.S.No.1027 of 2007; and


Original Side Appeal No. 301 of 2008 filed under 15 of letters Patent and under Order 36, Rule 11 of The Original Sides Rules, praying to set aside the Fair Order and Decreetal Order dated 30.04.2004 made in A.No. 7530 of 2007 and 437 and 438 of 2008 in C.S.No.1027 of 2007.)


Common Judgment: (D. Murugesan, J.)


The O.S.A.No. 290 of 2008 is filed by M/s. Orchid Chemical and Pharmaceuticals Limited, while O.S.A.Nos. 301 and 339 of 2008 are filed by M/s. United Biotech Pvt. Limited. As the appeals arise out of the common order passed by the learned single Judge, they are taken up together and disposed of by this common order.


2. For convenience, M/s.Orchid Chemicals and Pharmaceuticals Limited will be referred to as "the appellant", while M/s.United Biotech Pvt. Limited will be referred to as "the respondent".


3. The conflict between the parties which resulted in the litigation are as follows:-


(i) According to the appellant company, they are engaged in the manufacture of Pharmaceutical preparations since 1992. One of the products launched by the appellant company in the market in the year 1992 was CEFTAZIDIME preparations marketed in the trade mark ORZID. The appellant company obtained manufacturing licence for the product ORZID on 18.12.1998 with respect to export sale. They have also obtained licence for the pharmaceutical preparations ORZID with respect to sale in India on 06.09.1999. The product was launched in the market by them in early 1999. They filed an application for registration of the trade mark "ORZID" on 06.09.1999 under No. 874808 in class 5 claiming user of the trade mark since 1999 with respect to pharmaceutical and medicinal preparations. The said mark was advertised in the trade mark journal and no opposition was filed and therefore, the appellant became the registered proprietor of the trade mark w.e.f. 06.09.1999. The appellant is also the proprietor of the trade mark by virtue of prior user from 1999. Therefore, the appellant has derived exclusive right to use the trade mark "ORZID" both under the Statute and Common Law with respect to pharmaceuticals and medicinal preparations to the exclusion of all others.


(ii) For the first time in September 2007, the appellant came across that the goods of the respondent bearing the trade mark "FORZID" is marketed in Tamil Nadu and immediately, the appellant instituted the suit on the file of this Court in C.S.No.1027 of 2007 seeking permanent injunction restraining the respondent from manufacturing, marketing, distributing, offering or advertising for sale of any pharmaceutical preparations using the trade mark "FORZID" or any other name, which is in any way phonetically and deceptively similar to the appellant's trade mark "ORZID" and pass off their pharmaceutical preparations. Pending suit, the appellant filed an application in O.A.No.1275 of 2007 seeking interim order of injunction restraining the respondent from infringing their registered trade mark. The appellant also filed another application in Appln.NO.7530 of 2007 seeking for a direction to combine the cause of action with infringement of registered trade mark and passing off. By order dated 22.11.2007, this Court had granted ex parte order of interim injunction with respect to infringement of trade mark.


4. The respondent on entering appearance filed Appl.No.437 of 2008 to reject the plaint, in view of the provisions under Section 30(2) of the Trade Marks Act, where the proprietor of a trade mark cannot file a suit for infringement of a registered trade mark of another. The respondent also filed another application in Appln. No. 438 of 2008 praying to reject the plaint since no cause of action, in respect of passing off either in part or in full, has arisen within the jurisdiction of this Court and the appellant had not obtained leave of this Court under Clause 12 of the letters Patent. The respondent also took out applications in Appln.No. 439 of 2008 to suspend the order of interim injunction granted in O.A.No. 1275 of 2007 and Appln.No. 440 of 2008 to vacate the order of interim injunction granted in O.A.No. 1275 of 2007. While those applications were pending, the appellant had subsequently filed another application in O.A.No. 187 of 2008 for interim injunction with respect to passing off.


5. The learned single Judge took up all the above applications O.A.No.187 of 2008, Appln.No. 7530 of 2007, Appln. No.437 and 438 of 2008 and disposed them by order dated 30.04.2008.


6. Insofar as the application for rejection of plaint made in O.A.No.437 and 438 of 2008, the learned Judge found that the suit is essentially for infringement and it is maintainable on the file of this Court in terms of Section 134 (2) of The Copy Right Act. The learned Judge also found that the appellant could combine the relief of passing off, in view of the fact that the respondent had marked its pharmaceutical preparations known as, FORZID all over in India, including Tamil Nadu. Accordingly, dismissed both the applications. As far as Appln.No. 187 of 2008 seeking for interim injunction for passing off, the learned single Judge dismissed the application, having found no justification for granting of such an order, but however, ordered for combining the cause of action by allowing Appln. No. 7530 of 2007.


7. Questioning the order in O.A.No. 187 of 2008, the appellant has preferred O.S.A.No. 290 of 2008, while the respondent preferred O.S.A.Nos.301 of 2008 questioning the order made in A.No.7530 of 2007, A.No.437 and 438 of 2008 and also O.S.A.No.339 of 2008 challenging certain observations made by the learned Judge in regard to phonetic similarity while passing order in O.A.No.187 of 2008.


8. We have heard Mrs. Gladys Daniel, learned Advocate appearing for the appellant in O.S.A.No.290 of 2008, who is the respondent in O.S.A.No.301 and 339 of 2008 and Mr. A.A. Mohan, learned counsel appearing for the respondent in O.S.A.No.290 of 2008, who is appellant in O.S.A.Nos. 301 and 339 of 2008.


9. We have considered the rival submission of the respective counsel including their written submissions. We have perused the order of the learned judge and also the materials produced before this Court.


10. At the outset, we would like to make it clear that whatever the observations made in this Order are only to the limited extent for disposal of these appeals and the same shall not be understood to affect the rights of either party in the suit. Insofar as Appln. No.1275 of 2007 filed by the appellant seeking for an order of interim injunction restraining the respondent from infringing their trade mark is concerned, though initially ex parte order of injunction was granted, the same was subsequently vacated and the appellant did not question the same further and the same has become final.


11. The issue in these appeals are in respect of


(1) Whether the appellant could combine the cause of action and file a suit before this Court, both for infringement of trade mark and passing off?


(2) Whether the plaint should be rejected on the above ground?


(3) Whether the plaint could be rejected when a proprietor of a registered trade mark cannot maintain such a suit against another registered proprietor of a trade mark in terms of Section 30(2) of the Trade Marks Act, 1999?


(4) Whether the appellant is entitled to interim injunction restraining the respondent in respect of passing off?


12. Point Nos.1, 2 and 3:- Let us first consider the issue as to whether the appellant would be entitled to combine suit for infringement as well as passing off. It is the claim of the appellant that they are the proprietor of the registered trade mark "ORZID". In the plaint, it is specifically alleged that the appellant company is engaged in the manufacture and sale of Pharmaceutical preparations since the year 1992. They also launched a product, known as "CEFTAZIDIME" preparations under the trade mark "ORZID" in the market in the year 1999 and they also obtained manufacturing licence for the product on 18.12.1998 with respect to export sale. The trade mark was also advertised before registration, in Trade Mark Journal claiming themselves to be the users, since May 1999 and they had their Office in Mumbai. It is further asserted that their Office was shifted to Chennai and Form TN-34 has also been registered and an order was also passed by the Registry on 15.09.2004. In support of the above, the appellant had filed necessary documents along with the plaint. It is the specific averment of the appellant in the plaint that they are trading on the business within the jurisdiction of this Court at No.313, Valluvar Kottam High Road, " Orchid Towers", Nungambakkam, Chennai.


13. In the counter affidavit, the respondent had taken a stand that the suit for infringement of the trade mark is not maintainable in view of Section 30(2) of the Trade Marks Act, 1999. In terms of Sub Section (2) of Section 30 of the Trade Marks Act, the statutory right vested in respondent in the registered mark FORZID as the Trade Mark is protected under the provisions of Sections 30 to 34 of the Act.


14. As far as the passing off is concerned, as the appellant came across during September 2007 that the respondent has brought in the market the goods bearing trade mark "FORZID" within the jurisdiction of this Court, they are entitled to maintain suit for passing off as well. While adverting to the above averments, the respondent in para 7 (h) of the counter affidavit filed in O.A.No.1275 of 2007 stated that the respondent's mark "FORZID" is continuously used on an extensive scale all over India since January 2002.


15. In this regard, the judgment of this Court reported in 2008 (37) PTC 269 may usefully be referred to, wherein it is stated that it has been repeatedly held by the Apex Court that for the purpose of deciding the application, the averments made in the plaint are germane. In fact, in the said judgment, the Division Bench has said that even the pleas taken by the defendant in the written statement will be wholly irrelevant at that stage.


16. The learned single judge on a prima facie consideration has accepted the case of the appellant for combining both the reliefs together in the wake of the specific admission of the respondent that their mark "FORZID" is continuously used on an extensive scale all over India since January 2002. As the allegations and counter allegations are to be decided after trial, a prima facie conclusion arrived at by the Court for granting of order of interim injunction cannot be interfered with unless, such findings are not supported by any materials and contrary to the well settled law. We find that for arriving such a finding, the learned Judge has in fact relied upon the very counter affidavit filed by the respondent.


17. In Brooke Bond India Limited v. Balaji Tea (India) Limited (O.S.A.Nos.278 and 279 of 1989) by order dated 25.11.1992, the Division Bench of this Court observed that a suit can be filed for infringement of copy right with joinder of causes of action relating to passing off in terms of Clause 14 of Letters Patent. For the purpose of relief in regard to rejection of plaint, the respondent had mainly urged two grounds (1) that no part of cause of action for passing off arose within the jurisdiction of this Court and in any case, no leave under Clause 12 of the Letters Patent was sought or obtained by the appellant and (2) that in view of Section 30(2) of the Trade Marks Act, 1999, there is no infringement, since the respondent has also registration of their trade mark. Hence, we do no find any reason to interfere with the order of the learned single judge in allowing Appln. No. 7530 of 2007 for combining the causes of action.


18. As far as the first submission in respect of Clause 12 of the Letters Patent, the said Clause empowers this Court to entertain a suit for infringement of trade mark. The question is, whether by virtue of Clause 12 of Letters Patent, this Court would be competent to entertain the suit for passing off, as no cause of action for the same arise. In our opinion, as on fact of the case, prima facie we have found that the respondent had also extensively carry on its business activities all over India, which means including the state of Tamil Nadu, the application of Clause 12 of the Letters Patent, to the facts of this case cannot be made.


19. The respondent relied upon the judgment of the Supreme Court in Dhodha House and Patel Field Marshal Industries v. S.K. Maingi and P.M. Diesel Limited, 2006 (32) PTC 4 (SC). As rightly pointed out by the learned single Judge, the single Judge and Division Bench of Delhi High Court in Dabur India Limited's case followed the judgment of the Supreme Court made in Dhodha House and Patel Field Marshal Industries v. S.K. Maingi and P.M. Diesel Limited, 2006 (32) PTC 4 (SC). The Supreme Court was concerned with two cases which arose out of The Copy Right Act, 1957 and The Trade and Merchandise Act, 1958. In paragraphs 20 and 21 of the Judgment, the apex Court pointed out that while Section 62(2) of the Copy Right Act, 1957 created an additional forum, The Trade and Merchandise Act, 1958 did not create such an additional forum. In fact in Para 23, it is made clear that both the Courts were not concerned with the maintainability of a composite suit, both under Act, 1957 and Act, 1958. In the present case, the suit is filed for infringement of trade mark under the Trade Marks Act, 1999 and in terms of Section 134(2) of the Act, which is parameteria to the provisions of Section 62(2) of The Copy Right Act, 1957, as the present suit arose primarily out of the alleged infringement. The plaintiff is therefore entitled to stake its claim by passing off sale by combining the causes of action


20. Further the appellant has relied upon Clause 14 of Letters Patent, which empowers the Court to entertain the suit by combining causes of action. The application of the such clause to the present litigation will be considered in the later portion of this order. For the present, we may refer that in Dabur India V. K.R. Industries Limited, (2008 (37) PTC 332), the Supreme Court was not considering the provisions of Clause 14 of The Letters Patent.


21. The respondent has relied upon the judgment in Dabur India Vs. K.R. Industries (2008 (37) PTC 332), to oppose the combining of causes of action. It must be noted that the Apex Court was considering the question of combining the causes of action relating to two different acts viz., 1957 and 1958 The Trade and Merchandise Marks Act, and the provisions of Code of Civil Procedure. The territorial jurisdiction conferred upon the Court in terms of the Provisions of the Code of Civil Procedure shall also be made applicable to a suit or proceedings under Act, 1957. However, in Act, 1957 in terms of Sub Section 2 of Section 62, an additional forum is also provided to file a suit at different places, where the Copy Right is violated and when such similar provision was not made in Act, 1958, the Apex Court held that combining the causes of action impermissible. Under such circumstances, the said judgment cannot be pressed into service on the facts of this case.


22. That apart, in terms of Clause 14 of letters Patent, combining the cause of action could also be permitted. Clause 14 of letters Patent reads as under:-


"Joinder of several causes of action ? And, we do further obtain that where plaintiff has several causes of action against a defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the High Court shall seem fit.


23. A combining cause of action is also permissible, if the bundle of facts subject in issue and parties are also common and all the more the suit is to be tried by the same Court. Therefore, the appellant is entitled to combine the causes of action and file a suit before this Court both for infringement and passing off and consequently, the plaint need not be rejected.


24. Further, insofar the submission on protection in terms of Section 30(2) of the Trade Marks Act is concerned, the appellant is entitled to maintain the suit as the respondent was although a proprietor of a registered trade mark, by virtue of the order passed by the Intellectual Property Appellate Tribunal, rectification was made as to the registration of the trade mark in favour of the respondent and as on today, the registration of trade mark in favour of the respondent is not in force.


25. The action for infringement is a statutory remedy conferred on the proprietor of a registered trade mark for the vindication "exclusive right to use the trade mark in relation to those goods". As we have held the appellant is the proprietor of the registered trade mark, certainly, the suit for infringement is maintainable and the application of Section 30(2) of the Trade Marks Act, cannot be pressed into service. The Point Nos. 1 to 3 are accordingly answered and consequently, O.S.A.Nos. 301 and 339 are liable to be dismissed.


26. This takes us to the consideration of O.S.A.No.290 of 2008.


27. Point No.4:- Before we delve upon, as to whether the appellant is entitled to injunction, restraining the respondent from manufacturing, marketing, distributing, offering or advertising for sale any pharmaceutical preparations using the trade mark FORZID or any other name, which is in any way phonetically and deceptively similar to the appellant's trade mark ORZID and pass off the pharmaceutical preparations, we may point out that even before the appeal could be entertained, the appellant company seem to have approached the Intellectual Property Appellate Tribunal, seeking cancellation of registration of the trade mark FORZID in favour of the respondent. When the appeal came up for hearing, pursuant to the directions of this Court, O.R.A.No.39 of 2008 filed by the appellant before the Intellectual Property Appellate Tribunal was disposed on 20.10.2008 rectifying the registration FORZID in favour of the respondent. Therefore, the only question remains is, as to whether the appellant is a prior user and on that ground they could seek for injunction as to the passing off.


Power of granting injunction:-


28. Granting of order of interim injunction is discretionary and the power should be exercised with great caution and to balance of convenience of the respect parties on a prima facie consideration of the respective contentions made in the plaint and the written statement or the affidavit and counter affidavit, as the case may be.


29. The appellant claims to be the prior user of the trade mark ORZID since May 1992. According to the appellant, the respondent is a subsequent user since 2002 and the manufacturing licence itself was obtained for the product FORZID only in the year 2002. Therefore, the respondent could not have manufactured the pharmaceutical preparations under the trade mark FORZID prior to 2002.


30. Mrs. Gladys Daniel, learned counsel appearing for the appellant also submitted that even Intellectual Property Appellate Board had found that the trade mark FORZID is a slavish limitation of the trade mark ORZID and both the trade mark ORZID and FORZID are phonetically similar to each other. She further submitted that except one alphabet "F" which separates the appellant's trade mark from the respondent's trade mark, both the trade marks are phonetically similar.


31. On the other hand, Mr.A.A.Mohan, learned counsel appearing for the respondent would contend that the trade mark FORZID is observed from the words "FORCeftaZIDime". The word "ZID" is taken from the word "Ceftazidime", which is the base ingredient used in the product. He would also rely upon the judgment of this Court made in USV Limited, Chennai v. Systopic Laboratories Limited, Chennai (2004) 2 M.L.J. 301, and Cadila Laboraties Limited v. Dabur India Limited 1997 PTC (17). He would also submit that it is not uncommon to adopt brand name from the basic drug in the pharmaceutical trade. As the basic drug is Ceftazidime, the finding of the learned judge that both the trade mark are phonetically similar is not correct. He would also place reliance on the judgement reported in Astrazeneca UK Limited and another v. Orchid Chemical and Pharmaceuticals Limited, (2006 (32) PTC 33).


32. Action for passing off, is a common law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another. Action for passing, can be used to enforce against the proprietor of an unregistered mark, as the tort passing off protects the good will of the trader from misrepresentation that causes damage to goodwill. The elements of passing of are as follows:-


(1) goodwill owned by the trader;


(2) misrepresentation; and


(3) damage to the goodwill


No body has a right to represent his goods either phonetically or deceptively similar to the goods of another used in prior point of time. Any person, who registers a domain name on account of its similarity in the name, brand name or trade mark of an unconnected commercial organisation must expect to himself on receiving end of an injunction. The important test for grant of injunction is to find out as to whether the similarity between the two marks is so close either visually and/or phonetically or otherwise.


33. The Apex Court in Wander Limited and antoher v. Antox India Pvt. Ltd., (1991 IPLR 225), para-5 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 weighed against the corresponding need of the defendant to be protected against injury resulting from his having been pre-adequately compensated. The Court must weight one need against another and determine where the 'balance of convenience' lies. The interlocutory remedy is intended to preserve in status-quo the rights of parties which may appear on a prima facie case. 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.


Further, the Apex Court in para 9 held as follows:-


"The appeals before the Division Bench were against the exercise of discretion by the single Judge. In such appeal, the Appellate Court will not interfere with the exercise of discretion of the Court of the first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion has been exercise by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of jurisdiction."


34. As far as prior user is concerned, going by the averments made in the plaint , affidavits and counter affidavits, the plaintiff is the prior user of the trade mark ORZID. However, the question as to whether both the trade marks ORZID and FORZID are phonetically similar to each other, we may usefully refer the judgment of the Delhi High Court in Astrazeneca UK Limited and another vs. Orchid Chemicals and pharmaceuticals, 2006 (32) PTC 733 (Del.) appellants themselves successfully defended that in an action initiated by a UK Company that the marks MERONEM and MEROMER are not similar and the word MERO is taken from the basis drug MEROPENEM and composition are same. The Delhi High Court was found that MERO was generic and therefore, the word MERONEM and MEROMER are not similar.


35. In Cadila Laboratories Limited v. Dabur India Limited, 1997 PTC (17), the Delhi High Court held as follows:-


7. According to the decisions laid down by the various Courts, the importance of the prefix of the word should be taken due weightage and important in case where the suffix is common. Where the suffix of the word is common, regard must be had to the earlier portion of the word which distinguishes one from the other. Where the suffix is common, the earlier portion of the word is the natural, necessary and, in fact, the actual mark of distinction. It is also held in M/s. Johann A. Wulfing Vs. Chemical Industrial and Pharmaceutical Laboratories Limited & another Vs. Mac Laboratories Pvt. Limited & another reported in AIR 1986 Supreme Court 137 that the marks are different and not similar medicines considering the prefix. In the present case, competing trade marks 'Mexate' and 'Zexate' have different and distinguished prefix, one having syllable 'M' and the other having 'Z'. There is possibility of 'Mexate' being pronounced and/or read as 'zexate' under any circumstances. As has been settled, while ascertaining two rival marks, as to whether they are deceptively similar or not, it is not permissible to dissect the words of the two marks. It is also held that the meticulous comparison of words, letter by letter and syllable by syllable, is not necessary and phonetic or visual similarity of the marks must be considered. The two marks 'Fleboline' and 'Bionoboline' was held to be not similar by the Bombay High Court in Johann A. Wulfing V. Chemical Industrial & Pharmaceutical Laboratories & another (supra) as the terminology 'boline' cannot be an exclusive monopoly of hte respondents and that the cumulative effect of the two words did not produce the same impression. Even phonetically the two marks were held to be not closely similar. In the present case, since the two marks are different as the opening syllables of both the rival marks are completely different and distinct and the two drugs are schedule "H" drugs of a specialized nature which could only be purchased on showing a prescription from a cancel specialist, the two competing trade marks appear to be prima facie entirely different and dissimilar.


36. In the given case, though ZID could be termed as generic, in Cadila Laboratories Ltd v. Dabur India Limited , (1997 PTC (17) 417) it has been held that MEXATE and ZEXATE were different, though in that case also the prefix alphabet alone was different. In fact, in USV v. Systopic Laboratories, 2004 (2) MLJ, this Court had an occasion to consider the word "PIOZ" and "PIO" and ultimately found that both the letters are different.


37. Keeping the above in mind, both the trade marks viz., ORZID and FORZID should be considered. The appellant is marketing the

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formulation in vials of 250 mg. at a cost of Rs.75/- while the respondent is marketing the formulation in vials of 1 gm. and 2 gm. for Rs.310/- and Rs.575/- respectively. The product in question, is a pharmaceutical preparation and is an injectable formulation, whose generic for chemical name is "CEFTAZIDIME", which is a broad spectrum, third general parenteral cephalospori and it is a Schedule "H" Drug which cannot be sold without a prescription by a registered medical practitioner. The respondent company appears to have entered into an agreement with M/s.Oscar Remedies Pvt. Limited on 30.01.2001 for manufacture of several pharmaceutical preparation for the respondent. One of the products agreed to be manufactured and supplied by them to the respondent is ORZID. Pursuant to the agreement M/s. Oscar Remedies Pvt. Limited appears to have been supplying the product for the past more than 5 years as evidenced from the invoice file. The respondent is purchasing the basis drug viz., CEFTAZIDIME, as a sterile powder for making the same into an injectable formulation, from the appellant. In support of the said claim, the respondent has filed an invoice raised by the appellant on M/s.Oscar Remedies (P) Limited and a perusal of said document shows that the appellant had supplied 20 kg. of the said product packed in two cartons to M/s. Oscar Remedies (P) Limited in June 2003. The appellant was aware of the manufacture and supply of the product FORZID to be supplied to be respondent. In fact, the learned single Judge had extensively considered the above documents and arrived at a conclusion that as the respondent has been using the trade mark for the past at least 6 years and the appellant's product is available only in vials of 250 mg. at a cost of Rs.75/- whereas the respondent company's products available in vials of 1 gm. and 2 gm. for Rs.310 and Rs.575/- respectively. Except a phonetic similarity, the appellant had no right to seek for injunction. Apart from that it has to be seen that the drug in question is a Schedule "H" Drug available only on prescription as an injectable formulation and various dosage is prescribed for various age groups and there cannot be any confusion in the minds of the consumer in purchase of the drugs. 38. We are therefore of the considered view that the refusal of grant of interim order of injunction cannot be interfered with. Point No.4 is answered accordingly and O.S.A.No.290 of 2008 is also liable to be dismissed. 39. Insofar as O.S.A.339 of 2008 is concerned, though the learned single Judge had made an observation to the effect that both the trade marks viz., ORZID and FORZID are phonetically similar to each other, that was made only for the limited purpose of considering the request for interim order of injunction and the parties are yet at liberty to canvass their respective argument in the suit. 40. For all the above reasons, we do not find any infirmity in the common order dated 30.04.2008 made in O.A.No.187 of 2008, A.No.7530 of 2007 and A.No.437 and 438 of 2008 in C.S.No.1027 of 2007 and O.S.A.Nos. 290, 301 and 339 of 2008 are dismissed. No costs. Consequently connected miscellaneous petition is closed.
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