JUDGMENT - C.K. THAKKER, C.J.:---This appeal is instituted against an order passed by the learned Single Judge on December 21, 2001 in Notice of Motion No. 1790 of 2001. By the impugned order, the learned Single Judge rejected the application for ad interim relief filed by the appellants-applicants-plaintiffs. So far as the motion was concerned, it was made returnable after six weeks, and was ordered to be placed on Board on its own turn.

2. The appellants are the original plaintiffs. Suit No. 2597 of 2001 was filed by the plaintiffs against the defendant for permanent injunction restraining the defendant from infringing their registered trade mark SPOXIN. It was the case of the plaintiffs that in April, 1984, plaintiff No. 1 applied for and obtained Trade Mark SPOXIN which was registered in Part A of the Register vide No. 420835 in respect of Pharmaceutical and Medicinal Preparations in Class 5. The registration certificate was issued, and was renewed from time to time. It was also the say of the plaintiffs that they started using the said Trade Mark SPOXIN, exercising control over the quality of the medicines and pharmaceutical preparations manufactured by them. The mark has been used by the plaintiffs for medicinal preparations containing the generic drug SPARFLOXACIN, and the product was used as an anti-bacterial drug and prescribed for treatment of respiratory track infections, urinary track infections and skin and soft tissue infections. According to the plaintiffs, they were using the mark and were manufacturing drugs since September, 1999.

3. It is alleged by the plaintiffs that the defendant started selling pharmaceutical preparation under the mark SUPAXIN, which was deceptively similar to the plaintiffs registered Trade Mark SPOXIN, and thereby they had committed acts of infringement and passing off by contravening the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as “the Act”).

4. Along with the plaint, a Notice of Motion No. 1790 of 2001, was also taken out by the plaintiffs restraining the defendant from using the mark SUPAXIN. Though served, the defendant did not appear and, hence, ex parte ad interim order was passed in favour of the plaintiffs by the learned Single Judge. The defendant, thereafter, took out a Notice of Motion for setting aside ex parte ad interim order. The said Notice of Motion was disposed of on December 11, 2001, but ad interim order was continued till the plaintiffs application for ad interim relief was heard afresh.

5. The case of the defendant was that it is an established company with an annual turnover of Rs. 400 crores. It was the 10th largest Indian pharmaceutical company. It has a well established business, and enjoys large sales. In August, 1999, the defendant coined the Trade Mark SUPAXIN for its OFLOXACIN preparation by taking the prefix “SUPA”, meaning superior, and combining it with suffix “XIN”, which is the common suffix for antibiotics. It thus indicated superiority of the defendant's product over Ampicillin and other antibiotic preparations. The defendant applied for registration of the trade mark, and clearly indicated that it was “proposed to be used”. An application under Rule 24 of the Trade and Merchandise Marks Rules, 1959 was made to the Registrar, requesting him to issue a search report as to whether there were any conflicting marks registered or pending for registration. The mark SPOXIN was not deceptively similar to SUPAXIN, sought to be used by the defendant. The defendant, hence, started production under the mark SUPAXIN.

6. There was neither any dishonest intention on the part of the defendant in adopting mark SUPAXIN, nor had it committed any illegality. Mark SUPAXIN is neither deceptively similar, nor would it create any confusion to customers, and the plaintiffs were not entitled to any relief.

7. The learned Single Judge, after hearing the parties, did not think it fit to grant ad interim relief, and by the order impugned in the

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