The principle that no single proprietor can claim absolute monopoly in a trade mark derived from a common generic name and the commonality in origin, ingredient, and purpose of the products ruled out the possibility of confusion, dis-entitling the Appellants to interim injunction.

(D.K. Deshmukh, J.)

1. This appeal takes exception to the order dated 14th July, 2006 passed by the learned Single Judge of this Court dismissing Notice of Motion No.3459 of 2004. That Notice of Motion was taken out by the Appellants seeking certain interim reliefs in Suit no.3419 of 2004. The civil suit was filed by the present Appellants seeking decree of permanent injunction restraining the Defendants-Respondents from infringing the Plaintiffs’ registered trade mark “NETROMYCIN” and from passing off the defendants’ goods by using the trade mark “NETMICIN”. The Appellants had also prayed for permanent injunction restraining the Respondents-Defendants from using label, copy of which was filed with the Plaint, on the ground that by using that label the Defendants were passing off their goods as and for goods of the Appellants. The Appellants had also prayed for permanent injunction restraining the Respondents from infringing the copyright of the Appellants in the literary work of the package insert, as according to the Appellants, the Respondents had copied the same. The Appellants had prayed for interim reliefs in the Notice of Motion in the similar terms. At the hearing of the Notice of Motion, however, as the Respondents had contended that their mark was also registered, the relief in relation to passing of only was pressed by the Appellants. The learned Single Judge by her order impugned in the Appeal, rejected the Notice of Motion holding that (i) the Appellants have failed to prove distinctiveness of their mark or packaging;

(ii) Two marks viz. “NETROMYCIN” and “NETMICIN” are not deceptively similar;

(iii) there is no possibility of any confusion as the Respondents’ goods were purchased in bulk by the hospitals and that the same were not sold over the counter, whereas the Appellants’ goods were sold over the counter and that the purchasers of the Defendants’ goods have requisite knowledge and technical expertise in dealing with the drugs;

(iv) the essential features of the Appellants’ mark are different from that of the Respondents;

(v) There would not be any adverse effect on the consumer since the chemicals used in both the products are common; and

(vi) there were many medicines and pharmaceutical products being manufactured and traded in the market ending with the letters “Mycin”, “Micin” and “Cin”.

2. The learned Counsel appearing for Appellants submitted that the Learned Judge failed to apply the proper test of comparison of the two words “NETROMYCIN” and “NETMICIN”. It is also submitted that the true test is that the two marks are to be compared as whole. It is submitted that the learned Judge has held that there is no phonetic similarity between the two words because the number of syllables in the two words is different and that for phonetic resemblance, the number of syllables has to be the same. It is submitted that the similarity is to be judged by not making microscopic examination, and the principle that the word must be considered as a whole and compared with the other word as a whole was noted by the Supreme Court in the case of “Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. (2001)PTC 300” and also in the case of “Corn Products Refining Co. Vs. Shangrila Food Products Ltd., (1960)(1) SCR 968. It is submitted that in the latter case it was held, in respect of the two concerned trademarks therein viz. “Glucovita” and “Gluvita”, that apart from the syllable “co” in the Appellant’s mark, the two marks were identical and that the syllable “Co” was not in the opinion of the Court, such as would enable the buyers in our country to distinguish the one mark from the other. It is submitted that in the case of “Amritdhara Pharmacy vs. Satyadeo Gupta, AIR 1963 SC 449” which was referred to by the Supreme Court in the Cadila’s case referred to above, the two words Amritdhara and Lakshmandhara were held to be similar. It is further submitted that the learned Single Judge erred in holding that visu