The judgment establishes the importance of considering the narrow class of goods for which a trade mark is registered and the need to assess the similarity of goods from the standpoint of deception or confusion on the part of the public.

1. This Motion is taken out in a trade mark infringement and passing off suit with leave under clause XIV of the Letters Patent. The Motion cannot be taken up for final hearing for two reasons, one, because the Plaintiffs cannot press their interlocutory application in the passing off action in view of the order passed by the Appeal Court in the Defendants’ appeal from the order granting leave to the Plaintiffs under Clause XIV and secondly, due to the application of the Defendants for framing and deciding a preliminary issue under Section 9A of the Code of Civil Procedure. This order accordingly disposes of the Plaintiffs’ ad-interim application in the infringement action.

2. The case of the Plaintiffs may be briefly stated thus:

The Plaintiffs manufacture and deal in pharmaceutical and medical preparations and market their products under various distinctive trade marks and cartons/labels/packings/trade dress. The Plaintiffs are registered proprietors of the trade mark ‘CHERI’, with registration as of 14 May 1987, in respect of pharmaceutical preparations falling in Class 5 of the Fourth Schedule. Pharmaceutical preparations under the trade mark ‘CHERI’, which are haematinic preparations used for iron deficiency, are sold by the Plaintiffs in the form of syrup, tablets and capsules. The various ‘CHERI’ range of products sold by the Plaintiffs include CHERI syrup, CHERI-XT tablets, NEW CHERI capsules and CHERI-FOL capsules. The Plaintiffs claim to have used the trade mark ‘CHERI’ since 1987 throughout most of India continuously and extensively. The Plaintiffs have produced their sales turnover figures, invoices, promotional material, and promotional expenses to claim extensive reputation and goodwill enjoyed by their trade mark ‘CHERI’. In June 2011, the Plaintiffs came across a product marketed under the mark ‘CHERRY FOL’ by Defendant No. 1 and sent a cease and desist notice to the latter. In reply, Defendant No.1, whilst claiming that the word ‘CHERRY’ was common to the trade, offered nevertheless to desist from using the mark ‘CHERRY FOL’. It is the Plaintiffs’ case that in January 2014, the Plaintiffs found that Defendant No. 1, along with Defendant No. 2, had launched a product known as ‘MULTI CHERRY’. Once again the Plaintiffs sent a cease and desist notice. The Defendants, however, refused to comply and instead defended their use of the words MULTI CHERRY for their multivitamin syrup. The Plaintiffs’ case is that user of the mark ‘MULTI CHERRY’ by the Defendants constitutes infringement of their registered trade mark ‘CHERI’. The Plaintiffs submit that such user also leads to passing off of the Defendants’ goods as goods of the Plaintiffs. Hence the suit and the interlocutory application.

3 The Defendants’ case in reply may be shortly stated thus:

(i) The Plaintiffs’ original application for registration of the trade mark ‘CHERI’ was in respect of ‘medicinal and pharmaceutical preparations’ in Class 5. The application was objected to by the Registry on the ground that the mark was descriptive of the goods and not distinctive if the same was meant to be used generally for medicinal preparations. The mark was, therefore, agreed to be advertised in the trade mark journal subject to the Plaintiffs amending the specification of goods merely to read as ‘pharmaceutical preparations’. The Plaintiffs thereupon agreed to limit their application for registration only in respect of pharmaceutical preparations, by dropping ‘medicinal preparations’ from the description of goods. In view of this exclusion, the Plaintiffs cannot claim monopoly over the use of the word ‘CHERI’ in respect of medicinal preparations generally.

(ii) The Defendants’ product is not a pharmaceutical preparation, but is a mere dietary supplement intended to supplement normal diet. It is a proprietary food not meant for medicinal use, but to be used as per a dietician’s recommendation.

(iii) The Plaintiffs cannot prevent the Defendants’ use of the mark ‘MULT