This order will govern the Plaintiffs' Motion for interlocutory relief in an action for passing off and infringement.

2. On 6th September 1946, an application was made for the registration of the trade mark “FOLVITE” in class-5 in respect of “a nutritional factor of Vitamin B-Complex in the treatment and prevention of vitamin deficiencies and anemias”. The mark was advertised in the Trade Marks Journal and came to be registered in class-5 on 28th April 1949. The registration of the mark continues to be valid and to subsist. The First Plaintiff entered into a Registered User Agreement on 30th April 1986 with Cyanamid India Limited. The name of Cyanamid India Limited was changed to Wyeth Lederle Limited with effect from 1st January 1998. It is undisputed that the Plaintiffs are entitled to use and adopt the mark FOLVITE in a proprietary character.

3. The Defendant initially adopted the mark FOLCACID for its products. Subsequently, the mark was changed to FOL-V. Permission to do so was granted by the Drugs Control Authorities on th December 2000. In May 2000, the Defendant had filed an application for the registration of the mark FOL-V in respect of medicinal and pharmaceutical preparations falling in class-5. The Defendant stated that the mark was proposed to be used. Upon the mark being advertised, the Plaintiffs filed an opposition to the registration of the mark. On 15th December 2006, an order was passed by the Registrar of Trade Marks refusing registration to the trade mark FOL-V of the Defendant. The principles grounds which weighed to the Registrar were thus:

-(i) The Defendant's mark FOL-V bears similarity to the earlier trade mark FOLVITE of the Plaintiffs and having regard to the similarity of the goods involved, there was a likelihood of confusion on the part of the public, particularly since it was established that the mark of the Plaintiffs had acquired a reputation in the Indian Market;

(ii) Though the Defendant may be right in contending that the prefix FOL was common to the trade, the mere addition of the common alphabet 'V' which denotes 'Vitamin' cannot lend sufficient distinction to the mark of the Defendant from the mark of the Plaintiffs considered as a whole. There was an apparent danger of the public being confused and the use of the mark FOL-V would be detrimental to the distinctive character or repute of the mark of the Plaintiffs; (iii) The mark FOL-V adopted by the Defendant was visually and phonetically similar to the trade mark FOLVITE of the Plaintiffs; (iv) As a result of a long and extensive user, the mark of the Plaintiffs has acquired a tremendous reputation in the Indian Market and the user of a deceptively similar mark by the Defendant was likely to cause confusion in the mind of the public and the trade.

4. The Defendant has filed an appeal against the order passed by the Registrar refusing registration to the Intellectual Property Appellate Board. The appeal is pending.

5. The suit out of which these proceedings arise has been instituted for infringement and passing off.

6. In support of the application for injunction, it has been urged on behalf of the Plaintiffs that (i) The goods of the Plaintiffs and the Defendant are identical and the mark of the Defendant is visually and phonetically similar to the mark of the Plaintiffs. Comparing the mark as a whole, it is evident that the Defendant has adopted a mark which is deceptively similar to the mark of the Plaintiffs which consists of an invented word; (ii) There is a serious likelihood of confusion since both the marks are used for the same ailment, for the same purpose, and by the same type of customers or patients and the mark of the Defendant is deceptively similar; (iv) The adoption of the mark FOL-V by the Defendant is not honest and there is neither any explanation nor any traverse on affidavit of the reasons which led the Defendant to change over from the mark FOLCACID to FOL-V; (v) There is no delay or acquiescence on the