The court held that two trademarks are not deceptively similar if they are visually, phonetically, and structurally distinct, and if the class of purchasers who are likely to buy the goods bearing the marks is likely to be knowledgeable and careful.

( 1 ) ACCORDING to the plaintiffs, in the year 1989, the first plaintiff coined a unique and unusual trade mark mexate in respect of its methotrexate sodium injections used in the treatment of various types of cancers. According to the plaintiffs, the said trade mark is an invented word of the first plaintiff and has no meaning whatsoever. It is stated that the plaintiff No. l is also a registered proprietor of the said trade mark mexate having been granted registration on 5. 12. 1989 and registered in Class V. The trade mark mexate , according to the plaintiffs, is being extensively used by the plaintiffs since as far back as in August 1991. It is stated that the plaintiffs received information around January, 1996 that the defendant has recently introduced in the market a product under the brand name zexate and the only difference between the plaintiff s registered trade mark mexate and the defendant s trade mark zexate is the letter m replaced by the letter z , and therefore, it is apparent that the defendant had adopted zexate only to take advantage of the goodwill and reputation of the plaintiff s product mexate which acquired a reputation in the market.

( 2 ) ACCORDING to the plaintiffs, the trade mark zexate of the defendant is deceptively and confusingly similar to the plaintiff s registered trademark mexate . Mr. Lal, the Counsel appearing for the plaintiffs submitted that the defendant s trade mark is phonetically, visually and structurally identical to the first plaintiff s registered mark mexate and use of the same by the defendant amounts to a violation of the statutory rights which exist in favour of the first plaintiff.

( 3 ) MR. Anand, the Counsel appearing for the defendant, on the other hand, submitted that the claim of the plaintiff s amark mexate is coined, invented, unique and unusual is baseless. It is stated that the defendant is a reputed manufacturer of pharmaceuticals amongs to ther products and adopted the mark zexate in the year 1995whichalsocontainsmethotrexatesodiumastheactiveingredientandisadrug for treatment of cancer disease. It is stated that the suffix exate is common to both the plaintiff s and the defendant s marks which is the base product and the same constitutes5/6thoftheentire mark. Itis stated that while the plaintiffs have chosen to add m to have their brand read as mexate , the defendant has independently opted for "z. which is a highly distinct letter amongst all the syllables of English language. Besides,thereareotherpharmaceuticalcompanies,namely,m/s. Biochem Industries, Bombay and M/s. Biddle Sawyer which are using the brand names biotrexate and neotrexate respectively with the suffix trexate or exate and therefore, the two competing drugs in the present case are neither similar, both visually or phonetically.

( 4 ) SECTION 2 (d) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "act") defines the word "deceptively similar" as which would be deemed to be deceptively similar to Another mark if it so nearly resembles that other mark so as to likely to deceive or cause confusion. For deciding the question of deceptive similarity, the Courts have laid down the following factors to be considered:

(A) The nature of the marks, i. e. , whether the marks are word marks or level marks or composite marks, i. e. , both word and level marks. (b) The degree of resembleness between the marks, whether they are phonetically, visually or structurally similar and hence similar in idea. (e) The nature of the goods in respect of which they are used as trade marks. (d) The similarity in the nature, character and performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks. (f) The mode of purchasing the goods or placing orders for the goods; and (g) Any other surrounding circumstances. It is also settled that weightage to be given to each of the aforesaid