The Defendants’ marks infringe the Plaintiff’s, and that the Defendants’ use of the rival marks constitutes passing off. The Plaintiff’s case of use since 1987 is supported by prima facie material. The Defendants’ claim to honest adoption is hardly credible. The Defendants’ XYLOX family of marks are confusingly and deceptively similar to the Plaintiff’s LOX family of marks.

1. This is an action in trademark infringement combined with a cause of action in passing off. The Plaintiff manufactures, markets and sells various pharmaceutical goods. The 1st Defendant markets the pharmaceutical products manufactured by the 2nd Defendant.

2. The Plaintiff claims that its registered trade marks, LOX 2% ADRENALINE, LOX 4%, LOX 5%, LOX HEAVY 5%, LOX VISCOUS, LOXALPRIN, LOXALPRY, LOXIMLA, PLOX and RILOX (“the LOX Family”), have been infringed by the Defendants’ use of deceptively similar trade marks XYLOX 2%, XYLOX HEAVY, XYLOX GEL, XYLOX ADRENALINE, XYLOX 2% Jelly (“the XYLOX Family”), and that the Defendants are attempting to pass off their goods as those of the Plaintiff. The present application is for interim reliefs, including an injunction, and for the appointment of a Court Receiver.

3. I have heard Dr. Tulzapurkar, learned Senior Counsel for the Plaintiff, and Mr. Parikh, learned Counsel for the 1st Defendant, at some length. With their assistance, I have gone through the material on record. I have carefully considered this material and their respective submissions. For the reasons that follow, I have found, prima facie, that the Defendants’ marks infringe the Plaintiff’s, and that the Defendants’ use of the rival marks constitutes passing off. I have not found sufficient merit in the defence to deny the reliefs sought. I have made the Notice of Motion absolute.

4. The Plaintiff’s case is this: In 1987, it conceived and adopted the mark LOX with respect to its pharmaceutical products. Its popularity and high standards led to the Plaintiff extending its product range, throughout with the mark LOX as an essential and prominent feature, to which either a prefix/suffix is added. The resultant goodwill is such that the industry, trade, medical practitioners and the public all associate the LOX Family marks with the Plaintiff. Any use of the mark LOX is thus perceived as an extension of the LOX Family. Documents are annexed to the plaint — trade mark registration certificates, photographs of the products, sale invoices, promotional and advertising material and medical literature — in support of the Plaintiff’s claims of registration and user. The Plaintiff claims to be using the mark “LOX” since 1987, and has since used it exclusively, extensively and without interruption. Its products are sold domestically and, since 1995, to overseas markets. Exhibits E-1 to E-7 of the plaint are sales figures authenticated by the Plaintiff’s Chartered Accountants. The amounts are considerable: nearly Rs.5.75 crores for “LOX 4%” in 2013–14 alone, and overall more than Rs.151 crores from 1987 to 2013–4. There are significant promotional expenses as well, and much publicity. The Plaintiff’s products under the Lox Family marks are all anaesthetics of different formulations: LOX 2% ADRENALINE, for instance, has Lidocaine Hydrochloride and Adrenaline Bitartrate Injection I.P. and is used for infiltration when decreased bleeding is required; LOX 4% contains Lidocaine Hydrochloride and is a surface anaesthetic; and so forth.

5. The Plaintiff claims that in March 2014, it discovered that the Defendants were manufacturing and selling pharmaceutical products with the XYLOX Family marks for a virtually identical product range with a slightly different formulation: the Defendants’ products contain Lignocaine Hydrochloride, but are also used as anaesthetics. These marks, the Plaintiff says, are visually, phonetically and structurally similar to the LOX Family marks. The Plaintiff claims that this was to mislead the public into believing that the Defendants’ goods were an extended range of the Plaintiff, as they were aware of the Plaintiff’s predominance and market popularity. The addition of the prefix “XY” does not, the Plaintiff claims, make a material difference: it does not distinguish the Defendants’ marks from those of the Plaintiff, and, indeed, may even make matters worse by inducing consumers and users to believe th