IMPORTANT POINT
[The court established that in cases involving medicinal products, the threshold for proving deceptive similarity is lower due to the potential health risks associated with consumer confusion. The court emphasized the need for strict scrutiny in trademark disputes related to pharmaceuticals.]

JUDGMENT

Firdosh P. Pooniwalla, J. - The plaintiff is seeking ad-interim reliefs in terms of Prayer (a) of the Interim Application which reads as under:-

"(a) That Pending the hearing and final disposal of the Suit, the Respondents by themselves, their Directors, Partners/Proprietor, employees, servants, agents, associates, distributors, franchisees, sister concerns, subsidiaries, representatives, affiliates and/or assigns and allpersons acting for and on their behalf be restrained by a temporary order and injunction of this Hon'ble Court from using in relation to any medicinal and/or pharmaceutical preparations and/or such allied and cogent goods, the impugned trade mark 'XIGAMET' and/or using any other trade mark containing the word 'XIGAMET' or using in combination with or without any mark/word/device the word 'XIGAMET' and/or from using any other mark, device, logo, domain name or trade name, word which is identical with and/or deceptively similar to the Applicant's trade mark 'ZITA-MET' and 'ZITA-MET' formative marks so as to infringe the Applicant's trade marks 'ZITA-MET' and formative trade marks containing the word 'ZITA-MET' registered under Nos.2478663, 2985061, 2979092, 3533204, 3533208 and 4862436 all falling in Class-5 by such use and/or in any other manner howsoever;"

2. The Plaintiff is a Company engaged in the business of inter alia manufacturing, marketing and selling pharmaceutical and medicinal preparations. One of the Plaintiff's products is an anti diabetic drug sold under the registered trade mark "ZITA-MET". From April 2013 to January 2014 the chemical composition of the Plaintiff's drug bearing the said trade mark comprised of the molecule SITAGLIPTIN. After 2015 the Plaintiff changed the molecule of "ZITA-MET" from Sitagliptin to Teneligliptin and Metformin. Representations of the Plaintiff's goods bearing the trade mark "ZITA-MET" are annexed at Exhibits D-1 to D-3 of the Plaint.

3. The Plaintiff has applied for and secured trade mark registration for the word mark "ZITA-MET" and ZITA-MET formative trade marks in Class 5. In paragraph 5 of the Plaint, the Plaintiff has produced a table comprising of the particulars of the Plaintiff's trade mark registrations.

4. It is the case of the Plaintiff that, since the year 2013, the Plaintiff has been openly continuously and extensively using the said trade mark "ZITA-MET" in respect of its goods and has acquired tremendous goodwill and reputation in respect of its goods bearing the trade mark "ZITA-MET". The Plaintiff has produced along with the Plaint Sales Invoices and Chartered Accountant's Certificates.

5. In August 2020, the Plaintiff came across the impugned trade mark application filed by Defendant No.1 before the Trade Marks Registry for the impugned trade mark "XIGAMET" in respect of Class-5. Defendant No.1 had filed the said trade mark application for the trade mark "XIGAMET" on a proposed to be used basis on 26th February 2020. On 17th August 2020, the Plaintiff filed a Notice of Opposition before the Trade Marks Registry opposing the registration for the impugned trade mark application. Defendant No.1 filed its Counter Statement in the said opposition proceedings, however, Defendant No.1 omitted to state/disclose the date from which the Defendant No.1 started use of its impugned trade mark. The Plaintiff also did not come across any actual use of the impugned trade mark in respect of any goods in the market. In view thereof, coupled with the fact that Defendant No.1 had filed the impugned trade mark application on proposed to be used basis and that it had not filed any document to show actual use of the impugned trade mark, the Plaintiff did not immediately institute the suit against Defendant No.1. The opposition proceedings before the Trade Mark Registry are pending.

6. On 18th April 2023, Defendant No.1 filed its evidence in support of the impugned trademark Application in the said opposition proceedings. Upon perusal of the documents filed by Defenda