Oral Judgment: [S.J. Vazifdar, J.]

1. This is the defendants’ appeal against the order and judgment of the learned single Judge restraining it from manufacturing, marketing, selling and/or exporting medicinal or pharmaceutical preparations or any other goods under the impugned trade mark “Hb TONE”/ “HB TONE” or any other mark identical with and/or deceptively similar to the plaintiffs’ trademarks “ARBITONE”, “RB TONE” and/or “HB RON”, so as to pass off or enable others to pass off its pharmaceutical preparations as and for those of the plaintiffs/ respondents.

2. The respondents had filed the suit for infringement and passing off contending that the appellants’ marks were deceptively similar to theirs. On 28.2.2007 i.e. after the suit was filed, the appellant secured registration of the impugned mark. At this stage, therefore, the action is limited to passing off.

The respondents’ marks are registered in class V in respect of pharmaceutical preparations. Respondent No.1 by a Licensed User Agreement dated 31.3.1997 granted a licence to respondent No.2–Medlex Pharmaceuticals Limited to use the said marks. Respondent No.2 is, therefore, the licenced user of the said marks.