[Via Video Conferencing]

Rajiv Sahai Endlaw, J.

1. This appeal, under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) read with Section 13(1A) of the Commercial Courts Act, 2015, impugns the order (dated 6th January, 2021 of the Commercial Court-02, West District, Tis Hazari Courts, Delhi in CS (COMM) No.245/2020 filed by the respondent/plaintiff against the appellants/defendants) allowing the application of the respondent/plaintiff under Order XXXIX Rules 1&2 of the CPC, in a suit for permanent injunction for restraining infringement of trade marks and passing off and ancillary reliefs, and restraining the appellants/defendants from using the subject trade marks.

2. This appeal came up first before this Court on 23rd February, 2021, when the counsel for the respondent/plaintiff appeared on advance notice and accepted notice. The Commercial Court having granted three months' time on 6th January, 2021 i.e. till 6th April, 2021 for the interim injunction to become operative, the appeal was posted for hearing on 24th March, 2021, clarifying that the pendency of the appeal would not come in the way of the suit, from which this appeal arises, proceeding further. However, on 24th March, 2021, the appeal could not be taken up for hearing and was posted for today.

3. We have heard the counsel for the appellants/defendants and the senior counsel for the respondent/plaintiff.

4. Need is not felt to elaborate the pleadings of the parties, since the counsel for the appellants/defendants has confined the challenge to the interim order granted by the Commercial Court to the prima facie finding arrived at by the Commercial Court, of 'deceptive similarity', for granting the interim injunction. It is informed, that otherwise it is not in dispute that the marks of the respondent/plaintiff are registered and the respondent/plaintiff is the prior user thereof.

5. The contention of the counsel for the appellants/defendants is, that the prima facie finding arrived at by the Commercial Court, of the marks SULTICA, NUGERMINA and DOCOMUST of the appellants/defendants being deceptively similar to the marks SALTUM, REGERMINA and NEOMUST of the respondent/plaintiff, could not have been arrived at in law as enunciated in Astrazeneca UK Limited Vs. Orchid Chemicals and Pharmaceuticals Ltd. MANU/DE/0869/2007 (DB) and Sun Pharmaceutical Industries Ltd. V. Anglo French Drugs & Industries Ltd. MANU/DE/2261/2014 (DB). It is argued, that the Commercial Court mis- applied the test of deceptive similarity to arrive at the prima facie finding and disregarded the principles applicable to pharmaceutical products.

6. It is informed, (A) that the products, under the mark SULTICA of the appellants/defendants as well as under the mark SALTUM of the respondent/plaintiff, are for treatment of bacterial infection, with SULTAMICILLIN TOSYLATE being the active ingredient thereof; while the product under the mark SULTICA of the appellants/defendants is only available in the form of tablets, the product SALTUM of the respondent/plaintiff is available not only in the form of tablets but also in the form of injectibles; (B) that the products, under the mark NUGERMINA of the appellants/defendants and under the mark REGERMINA of the respondent/plaintiff, are probiotics; while NUGERMINA of the appellants/defendants is available only in liquid form, REGERMINA of the respondent/plaintiff is available in powder as well as capsule form; both are for treatment of antibiotic induced diarrhea; and, (C) that the product under the mark DOCOMUST of the appellants/defendants is available only in liquid form and is for general well-being and development, intended for pediatric use; on the contrary the product under the mark NEOMUST of the respondent/plaintiff is for supporting the treatment of arterial diseases in adults.

7. The counsel for the appellants/defendants has also underlined that all the three products are Schedule H drugs, available only against doctors' prescription and which cannot be sold over the counter.

8. The counsel for the appellants/defendants has further argued, (i) that in the Pharmaceutical Industry, the practice of using the name of the salt i.e. as a prefix or a suffix to the trade mark, is well established and accepted; (ii) that thus there are multiple users using the name or part of the name of the salt or active ingredient of a medicine, as a prefix or a suffix; (iii) that the appellants/defendants, in their reply before the Commercial Court to the application of the respondent/plaintiff for interim relief, in tabular form, have set out the particulars/comparisons of the marks of the respondent/ plaintiff and the appellants/defendants, to demonstrate that the test of deceptive similarity is not satisfied in any way; attention in this regard is invited to pages 89, 93 and 98 of the file, with respect to the three marks; (iv) that the appellants/defendants, at page 197 onwards of the file, have also filed registrations of trademarks in favour of others, which, on the parameters applied by the Commercial Court for grant of interim injunction in the impugned order, satisfy the need for grant of injunction against the said trade marks also but against whom the respondent/plaintiff has not taken any action; (v) reliance is placed on paragraphs 3 and 31 to 45 of Macleods Pharmaceuticals Ltd. Vs. Swisskem Healthcare MANU/MH/1771/2019; (vi) reliance is also placed on paragraphs 17 to 23 of Astrazeneca UK Limited supra and on paragraphs 19 to 22 of Sun Pharmaceutical Industries Pvt. Ltd. supra; (vii) that the Commercial Court has misapplied the test required to be applied and though the aforesaid judgments were cited, but the same have been disregarded; (viii) that on the contrary the Commercial Court has relied on M.K. Petro Products India Pvt. Ltd. Vs. M.K. Bitumen Products 2011 (182) DLT 86, the defendant wherein was an ex-employee of the plaintiff therein and, while setting up his own business, had copied even the business name of the plaintiff and for which reason was found to be passing off his goods as that of the plaintiff and in which circumstances the injunction was granted and which was/is not the case here; (ix) that the suffix 'GERMINA' in REGERMINA of the respondent/plaintiff and NUGERMINA of the appellants/defendants, though not based on any salt or active ingredient, is an abbreviation for 'germination', in the context of a probiotic and is thus also common to the genre of product and is used by other manufacturers/sellers of probiotics also; (x) that there can be no possibility whatsoever of the doctors, on whose prescription alone the aforesaid products are to be sold, being confused between either of the three sets of trade marks; (xi) that because of the difference in packaging of the products and the differences in form and strength in which the products of the appellants/defendants and the respondent/plaintiff are available, also, there is no possibility whatsoever of any confusion; and, (xii) that the name SALTUM as well as SULTICA have been derived by the respondent/plaintiff and the appellants/defendants from SULTAMICILLIN TOSYLATE, being the active ingredient of the said product.

9. We have enquired from the counsel for the appellants/defendants, how can the differences in (a) packaging, (b) form i.e. whether tablet or liquid or injectible and (c) strength i.e. whether of 250 mg or 400 mg or 1000 mg, be relevant for arriving at a prima facie view qua similarity/deceptive similarity in trade mark of pharmaceutical products. The said parameters may be relevant qua trade marks for daily/regular use goods like soaps, detergents, shampoo etc. but not for medicines, the second use whereof may be far apart from the first and which may not even be administered by the same person and even if consumed by the patient himself, are consumed while ailing, hardly paying attention to packaging etc. thereof and not expecting to consume it again.

10. Before proceeding to record the arguments of the senior counsel for the respondent/plaintiff, it is deemed appropriate to record the reasons which prevailed with the Commercial Court, for prima facie finding similarity/deceptive similarity and possibility of confusion, in the marks aforesaid of the appellants/defendants with the registered trade marks of the respondent/plaintiff, leading to grant of interim injunction. The Commercial Court has reasoned, (a) that the names of the medicines of the appellants/defendants were phonetically similar to those of the respondent/plaintiff and were likely to create confusion in the mind of the buyer; (b) that even if the drug is a Schedule H drug and can be sold only on prescription, yet the fact of the matter is that even such drugs are sold over the counter; (c) that considering the fact that the appellant/defendant No.2 Pawan Kumar Singh is an ex-employee of the respondent/plaintiff, the burden on the respondent/plaintiff to show likelihood of confusion in the mind of consumer is less; the appellant/defendant No.2 had entered into the same business as of the respondent/plaintiff, with whom he was employed and applied for registration of the impugned marks, even prior to leaving the employment of the respondent/plaintiff; such conduct of the appellant/defendant No.2 showed a dishonest intention; (d) that M.K. Petro Products India Pvt. Ltd. supra cited by the respondent/plaintiff squarely applied to the facts of the present case; (e) that the burden was heavy on the appellants/defendants, of which the appellant/defendant No.2 was an ex- employee of the respondent/plaintiff, to show that the creation of the impugned trade marks by the appellants/defendants was bona fide vis--vis the prior registered trade marks of the respondent/plaintiff; (f) that the principles of law laid down in Himalaya Drug Company Vs. S.B.L. Limited 2012 (194) DLT 536 and in Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73 are applicable to the facts of the case; (g) that the contention of the appellants/defendants, as an ex-employee, that the word 'GERMINA' was publici juris was unacceptable, as the appellant/defendant No.2, being familiar with the dealers and the distribution network of the respondent/plaintiff, by adopting the same/similar mark as the respondent/plaintiff, was attempting to confuse the dealers and distribution network inasmuch as the products were for the same ailments; (h) that Astrazeneca UK Limited supra and Sun Pharmaceutical Industries Pvt. Ltd. supra cited by the counsel for the appellants/defendants were not applicable; (i) that though the respondent/plaintiff had also sued to restrain the appellants/defendants from using the mark RYTHMIX, disclosed on the website of the appellants/defendants, on the ground of the respondent/plaintiff being the prior registered user of the same mark but the appellants/defendants had stated that they had not launched the website which disclosed the said mark and that the said website was only a prototype and was never used and that the appellants/defendants had no product under the name RYTHMIX; (j) that the contention of the appellants/defendants, that their trade mark DOCOMUST was also registered, was of no avail in view of S. Syed Mohideen Vs. P. Sulochana Bai (2016) 2 SCC 683 and in view of the admitted position of the registration of NEOMUST in favour of the respondent/plaintiff being prior in point of time; and, (k) that the respondent/plaintiff had succeeded in proving that it had a prima facie case and balance of convenience in its favour and would suffer irreparable loss unless the appellants/defendants were restrained.

11. The senior counsel for the respondent/plaintiff has at the outset contended that this Court, exercising appellate jurisdiction, would not interfere with the interim order of the Court of Original Jurisdiction, if the view taken by the Suit Court, is a plausible view and merely substituting its own opinion. Reference is made to Wander Ltd. Vs. Antox India P. Ltd. 1990 Supp SCC 727.

12. On enquiry, whether what was laid down in Wander Ltd. supra applied only to intra-court appeals or also to inter-court appeals, it is argued that it matters not whether the appeal is intra-court or inter-court and the principle laid down therein would apply.

13. The senior counsel for the respondent/plaintiff further argued, that it is not even the contention of the counsel for the appellants/defendants that the impugned order is perverse and in the absence whereof, the same does not call for any interference in the interim order granted by the Commercial Court. Reliance, besides on Cadila Health Care Ltd. supra and Himalaya Drug Company supra is placed on paragraph 17 of Heinz Italia Vs. Dabur India Ltd. (2007) 6 SCC 1. It is argued, that in relation to pharmaceutical products, difference in packaging and the fact that the products are Schedule H drugs, is irrelevant. With reference to the differentiation pleaded by the appellants/defendants in tabular form in their reply before the Commercial Court to the application for interim relief, it is argued that the appellants/defendants, to differentiate the two marks, have dissected the marks and which is not permissible; the test is of overall similarity of the marks. It is similarly contended that the differences in price are also not relevant as the purchase of medicines is far apart in time and there is remote likelihood of the consumer/patient remembering the price at which the drug was purchased long back. With reference to the products under the name NEOMUST and DOCOMUST, it is contended that since the two are meant for different ailments, the consequences of one being confused for the other can be grave and which factor has been kept in mind by the Commercial Court while granting the interim injunction.

14. The senior counsel for the respondent/plaintiff has also argued that the counsel for the appellants/defendants, in his arguments, while referring to M.K. Petro Products India Pvt. Ltd. Supra, has conveyed an impression as if the facts of the present case are different and there is no employer- employee relationship. It is contended that in the present case also the appellant/defendant No.2 namely Pawan Kumar Singh was a Deputy General Manager (Marketing) of the respondent/plaintiff and has set up the business in the name and style of appellant/defendant No.1 with the appellant/defendant No.3 and applied for registrations of the impugned marks, while still in employment of the respondent/plaintiff. Attention is drawn to the report of the commission issued by the Commercial Court to the warehouse of the appellant/defendant No.1 and in which the Court Commissioner appointed, has reported as under:

"7. Further the undersigned, took the photographs etc. of the premises and the goods and the accounts etc. The packing material of Morepen was also found (The card Board Boxes inside which the impugned goods were packed were found to be having taped with Morepen Tapes) it appears the same was done to give an impression that the goods inside are of Morepen. The photographs (305 in number) and one DVD are annexed and kept in a separate Envelop as ANNEXURE-LC-6."

15. The senior counsel for the respondent/plaintiff has contended, that the counsel for the appellants/defendants, in his arguments, has concealed the aforesaid report and which shows a mala fide intent of the appellants/defendants to pass off their goods as those of the respondent/plaintiff. In this context it is also informed that the appellants/defendants, in the prototype of their website, copied the contents of the website of the respondent/plaintiff, as evident from the prototype of the appellants/defendants website also referring to RYTHMIX, another trade mark and product of the respondent/plaintiff, and qua which the appellants/defendants made a statement that they did not intend to use the said trade mark RYTHMIX and had no such product. It is argued that the adoption by the appellants/defendants of the impugned trade marks has to be considered in the aforesaid light. The senior counsel for the respondent/plaintiff also states that though the annexures to the report of the Court Commissioner were filed by the Court Commissioner before the Court in a sealed cover and were earlier not available but the said sealed cover has since been opened and copies of the annexures have been made available and the respondent/plaintiff has today emailed the copies thereof.

16. We must record, that having commenced hearing the appeal without having gone through the records thereof, the argument of the counsel for the appellants/defendants that the Commercial Court wrongly relied on M.K. Petro Products India Pvt. Ltd. supra which was a case of an ex-employee, was indeed understood by us as, that the law expounded therein of similarity/deceptive similarity in trade mark when the defendant is an ex- employee of the plaintiff, has no application to the present case inasmuch as there is no such relationship in the present case. However, it turns out to be otherwise. All that we would observe is, that the counsel should have underlined that there is such a relationship in the present case also. The explanation as is now given, that the defendant in that case had copied the business name of the plaintiff also, ought to have been given while making the said argument.

17. Being of the opinion that the report of the Court Commissioner has a material bearing to the matter in controversy, we have enquired from the counsel for the appellants/defendants, whether the appellants/defendants, before the Commercial Court, have preferred any objection to the said report of the Court Commissioner and/or whether the appellants/defendants, in the memorandum of this appeal, have raised any objection with respect thereto or made any pleas with respect thereto.

18. The counsel for the appellants/defendants states that since the annexures to the report of the Court Commissioner had not been made available till recently, objections to the report could not be filed but will now be filed. He further states that no mention was made of the report of the Court Commissioner in the impugned judgment and the appellants/defendants thus were not required to make any plea/ground with respect thereto in the memorandum of appeal.

19. We are unable to agree. The factual finding, reproduced above, in the report dated 28th October, 2020 of the Court Commissioner, has serious consequences. The appellants/defendants, even if had not received the copies of the annexures, if felt that what was reported was wrong, ought to have immediately filed their objections, reserving the right to make further objections on receiving copies of the annexures. It cannot be lost sight of that what was reported, related to the premises of the appellants/defendants and of which the appellants/defendants were aware and the appellants/defendants did not have to wait for the photographs to object, if had any objection thereto.

20. The counsel for the appellants/defendants now states that the premises where the warehouse of the appellants/defendants is situated, also belong to an ex-employee of the respondent/plaintiff and the packaging material and the tapes of the respondent/plaintiff reported by the Court Commissioner to have been found, had been brought to the premises when the owner thereof was in the employment of the respondent/plaintiff. It is further stated that the cartons on which the tape of the respondent/plaintiff is reported, are in fact empty and do not contain the products of the appellants/defendants.

21. Even if the aforesaid explanation of the appellants/defendants is true, we are unable to understand why could not be made immediately after the Court Commissioner had submitted his report and why did the appellants/defendants have to wait for receiving the copies of the annexures to the report. Such conduct of the appellants/defendants lends us to at least at this stage treat the explanation aforesaid as an afterthought and to read the report of the Court Commissioner at its face value and as uncontroverted by the appellants/defendants.

22. We are also unable to accept the contention of the counsel for the appellants/defendants, that because the impugned judgment does not refer to the said report, the appellants/defendants in the memorandum of appeal were not required to deal therewith. To say the least, the said argument has no basis in law. Even if the Court, in its judgment/order, while deciding in favour of the plaintiff, does not place reliance on any material on record though in favour of the plaintiff, it is always open to the plaintiff to, while opposing any appeal from the order/judgment of the Court, rely on the said material for supporting the judgment. The plaintiff could not have preferred an appeal from the judgment otherwise in its favour, for making a grievance that other material in his favour was not cited for returning a finding in his favour. We may also mention, that though a Judge may form an opinion in favour of a plaintiff on the basis of the entirety of the material on record but a particular part of the said material may accidently be omitted from being referred to in the order/judgment, though having weighed with the Judge in forming the opinion. It was thus very much incumbent in law on the appellants/defendant to, in the memorandum of appeal make pleadings with respect to the all the material on record of the suit which can be relied upon by the respondent/plaintiff for supporting the judgment and the appellants/defendants having not done so, have to be presumed to be not objecting to what has been reported by the Court Commissioner and consequences therefrom have to flow.

23. The consequence of what has been reported by the Court Commissioner is, that prima facie the appellants/defendants are found to be passing off their goods as that of the respondent/plaintiff.

24. Though we are of the view that the appeal is liable to be dismissed for the aforesaid reasons alone but even otherwise are of the view that the prima facie finding of the Commercial Court, of similarity/deceptive similarity in the trade marks of the appellants/defendants with that of the respondent/plaintiff, cannot be said to be arbitrary, capricious or perverse, which no reasonable person could have arrived at, or having been arrived at, in ignorance of settled principles of law governing grant or refusal of interlocutory injunction. Before Wander Ltd. supra also, in Printers (Mysore) Private Ltd. Vs. Pothan Joseph AIR 1960 SC 1156, it was held that where the discretion vested in the Court has been exercised by the Trial Court, the Appellate Court will be slow to interfere with the exercise of said discretion and more so, solely on the ground that if had considered the matter at trial stage, it would have come to a contrary conclusion. It was further held that if the discretion has been exercised reasonably and in a judicial manner, the mere fact that the Appellate Court would have taken a different view, would not justify interference with the Trial Court's exercise of discretion; only if the Trial Court, in exercising its discretion has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach, it would be open to the Appellate Court to interfere in the Trial Court's exercise of discretion. Reiterating the said principle, in Wander Ltd. supra it was held, that an appeal against exercise of discretion is said to be an appeal on principle. The same view was reiterated in N.R. Dongre Vs. Whirlpool Corporation (1996) 5 SCC 714, Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel (2006) 8 SCC 726, Skyline Education Institute (India) Private Limited Vs. S.L. Vaswani (2010) 2 SCC 142, Purshottam Vishandas Raheja Vs. Srichand Vishandas Raheja (2011) 6 SCC 73, Mohd. Mehtab Khan Vs. Khushnuma Ibrahim Khan (2013) 9 SCC 221, Neon Laboratories Limited Vs. Medical Technologies Limited (2016) 2 SCC 672, Cadila Health Care Ltd. and Heinz Italia supra.

25. As far as the judgments relied upon by the counsel for the appellants/defendants are concerned, in Astrazeneca UK Limited supra, the trademark of the defendant namely MEROMER was alleged to be deceptively similar to the mark MERONEM of the plaintiff therein. The Division Bench of this Court held that when taken as whole, the marks were not phonetically or visually or in any manner deceptively similar to each other, though the prefix 'Mero' was common to both the marks; it was however held that the said prefix was derived from the molecule 'Meropenem' in both the products. It was held that in the trade of drugs, it is a common practice to name the drug by the name of the organ or ailment which it treats or the main ingredient of the drug and such an organ or ailment or ingredient being publici juris or generic cannot be owned by anyone exclusively for use as a trade mark. Similarly, in Macleods Pharmaceuticals Ltd. supra of the Single Judge of the Bombay High Court, the plaintiff, registered owner of the trade marks PANDERM and PANDERM +, sought to restrain the defendant from using the trade mark POLYDERM +. It was held that both the plaintiff and defendant derived their respective trade marks from the stream of science to which the products belonged, i.e. Dermatology. The descriptive suffix 'DERM', which was indicative of a dermatological product, was the only similarity between the trade marks, and the plaintiff could not be permitted to monopolize the suffix 'DERM' in respect of pharmaceutical preparations.

26. In the present case, on an analysis of the marks of the appellants/defendants and respondent/plaintiff, from the table given by the appellants/defendants in the reply to the application for interim relief filed before the Commercial Court aforesaid, it appears that the aforesaid reasoning can be applied only to one of the subject trademarks, being the trademark SALTUM of the respondent/plaintiff and the trademark SULTICA of the appellants/defendants, both of which are derived from the active ingredient 'Sultamicillin Tosylate'. On the contrary, the other two impugned trademarks, being NUGERMINA of the appellants/defendants, alleged to be deceptively similar to the trademark REGERMINA of the respondent/plaintiff, as well as the trademark DOCOMUST of the appellants/defendants, alleged to be deceptively similar to the trademark NEOMUST of the respondent/plaintiff, both do not satisfy the aforesaid test. The former contains the common suffix 'GERMINA' stated to be derived from the word 'germinate' to relate to the function of probiotics, while the latter contains the common suffix 'MUST', the English word to signify 'it is necessary'. It is contended by the appellants/defendants that both words being generic are publici juris and cannot be owned by the respondent/plaintiff exclusively for use as a trade mark, but we are not persuaded by the said reasoning as the words are neither derived from the chemical composition of the drugs, nor from any specific organ or ailment targeted by the pharmaceutical product, and hence adaption of those words, is completely arbitrary, and coupled with the fact that the appellant/defendant No.2 was an ex-employee of the respondent/plaintiff, can only lead to the conclusion that the same were adopted dishonestly, in order to create confusion on the minds of the consumers of the said products. We find, in a number of cases before this Court pertaining to pharmaceutical products, where the trademarks are not derived from the chemical composition, or the disease they cure, or the organ with which they are related, and are otherwise derived from any other generic word, that this Court has found the trademarks to be deceptively similar to the trademarks of the plaintiffs in those cases. Reference in this regard may be made to Remidex Pharma Private Limited Vs. Savita Pharmaceuticals P. Ltd. (2006) 131 DLT 350 (where 'EVIT' was found to be deceptively similar to 'ZEVIT'), United Biotech Pvt. Ltd. Vs. Orchid Chemicals & Pharmaceuticals Ltd. 2012 SCC OnLine Del 2942 (DB) (where 'FORZID' was found to be deceptively similar to 'ORZID'), Merck Kgaa Vs. Emil Pharmaceutical Inds. Pvt. Ltd. 2014 SCC OnLine Del 6733 (where 'COZOLE' was held to be deceptively similar to 'COSOME'), Merck Kgaa Vs. Hasmukh N. Thakkar 2014 SCC OnLine Del 1938 (where 'ECEFLAM+' was found to be deceptively similar to 'EMFLAM' and 'EXFLAM'), Mankind Pharma Ltd. Vs. Cadila Pharmaceuticals Ltd. 2015 SCC OnLine Del 6914 (where 'MECOKIND PLUS' was held to be deceptively similar to 'METROKIND') and Sun Pharma Laboratories Ltd. Vs. Intas Pharamceuticals Limited 2019 SCC OnLine Del 8899 [FAO(OS)(COMM) No. 170/2019 preferred whereagainst disposed of on 7th August, 2019] (where 'DECITAS' was held to be deceptively similar to 'DECITEX'). Even the same Single Judge of the Bombay High Court as in Macleods Pharmaceuticals Ltd. supra, in other such matters, has justified the grant of interim injunction in favour of the plaintiffs therein. Reference, illustratively, in this regard can be made to Charak Pharma Pvt. Ltd. Vs. Glenmark Pharmaceuticals Ltd. 2014 SCC OnLine Bom 98 (where 'ECONOVA' was found to be deceptively similarly to 'EVANOVA') and Lupin Limited Vs. Eris Lifesciences Pvt. Ltd. 2015 SCC Online Bom 6807 (where 'NEBISTOL' was held to be deceptively similar to 'NEBISTAR').

27. As far as Sun Pharmaceutical Industries Pvt. Ltd. supra cited by the counsel for the appellants/defendants is concerned, we find that the same went on in appeal to the Supreme Court vide Special Leave to Appeal (Civil) No.33164/2014, which was disposed of as settled on 5th July, 2016 and in terms of order dated 4th April, 2016 therein, it appears that the terms of the settlement included change of name of the impugned trademark therein. In light thereof, we are reluctant to follow Sun Pharmaceutical Industries Pvt. Ltd. supra.

28. It is also significant that none of the cases cited by the counsel for the appellants/defendants concern a factual matrix wherein the defendant in the suit for infringement of trademark is a former employee of the plaintiff. Merit is found in the contention of the counsel for the respondent/plaintiff, affirmed by the Commercial Court, that the appellant/defendant No.2 being the ex-employee of the respondent/plaintiff, the burden was heavier on the appellant/defendant No.2 to show creation of the trade mark was bona fide, even without considering the damning report of the Local Commissioner aforesaid. In The British India Corporation Ltd. Vs. Khairati Ram AIR 2000 Del 289, adoption by an ex-employee, of the mark 'DWM- DHARIWAL' as against the mark 'DHARIWAL' of the ex-employer, combined with use of the same script, was held to be dishonest and it was held that dis

cretion under Section 12(3) of the Trade Marks Act can be exercised only where the parties are unknown to each other, innocently adopt and use similar mark. In Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia (2004) 3 SCC 90 also, taking note of the fact that the defendants used to work with the plaintiff, the order of the Trial Court of grant of interim injunction was restored and the order of the Appellate Court, vacating the injunction, set aside. In M.K. Petro Products India Pvt. Ltd. supra it was held that the chances of confusion and deception are enhanced when the defendant is an ex-employee of the plaintiff and was aware of customers, dealers and distributors of the plaintiff and particularly when the defendant gives no justification for adopting a similar mark. The appellants/defendants, if had bona fide intention, while naming their product with the active ingredient SULTAMICILLIN TOSYLATE, could have used any part thereof other than "SULT" and adoption of SULTICA, when were till shortly prior thereto were marketing SALTUM of the respondent/plaintiff, prima facie displaces mala fide and dishonesty. Mention may also be made of Shree Sainath Industries Vs. Sainath Auto Industries 2004 SCC OnLine Guj 25, Sirmour Remedies Pvt. Ltd. Vs. Kepler Healthcare Pvt. Ltd. 2014 SCC OnLine Cal 2703, Sanofi India Ltd. Vs. Universal Neutraceuticals Pvt. Ltd. 215 (2014) DLT 585 and Cadila Healthcare Ltd. Vs. Uniza Healthcare LLP MANU/DE/0346/2021, in all of which weightage was given to the fact that the defendant was an ex- employee of the plaintiff, in granting interim injunction. We may mention that even in Heinz Italia supra it was held that the principle of similarity cannot be very rigidly applied and if it can be prima facie shown that there was dishonest intention, injunction normally follows. It was further held that similarities, rather than dissimilarities, have to be considered. The appellants/defendants in the present case, if had no dishonest intention, while commencing the same business as of the respondent/plaintiff with which they were earlier employed, ought not to have kept marks similar/deceptively similar to that of the respondent/plaintiff. 29. No merit is found also in the contention of the counsel for the appellants/defendants that the respondent/plaintiff is not entitled to injunction for the reason of others using similar marks. The respondent/plaintiff, as a registered proprietor of the trademark is not expected to run after every infringer and to instead of carrying on business in pharmaceuticals, carry on business in litigations; litigations are to be instituted only against those, use by whom of a similar/deceptively similar mark affects the respondent/plaintiff. Reference may be made to National Bello Vs. Metal Goods Mfg. Co. P. Ltd. (1970) 3 SCC 665, Dr. Reddy's Laboratories Ltd. Vs. Reddy Pharmaceuticals Ltd. 2004 (76) DRJ 616, Pankaj Goel Vs. Dabur India Ltd. 2008 (38) PTC 49 (Del) (DB), Novartis AG Vs. Crest Pharma Pvt. Ltd. 2009 (41) PTC 57 (Del), Cadila Healthcare Ltd. Vs. Aureate Healthcare Pvt. Ltd. 2012 SCC OnLine Del 3940 and Nuvoco Vistas Corporation Ltd. Vs. J.K. Laxmi Cement Ltd. 2019 SCC OnLine Del 8057. 30. No other argument has been urged by the counsel for the appellants/defendants. 31. No merit is found in the appeal. 32. Dismissed. Appellants/defendants to pay costs of this appeal of Rs.50,000/- to the respondent/plaintiff.