( 1 ) THIS order shall dispose of an application under Order 39 Rule 1 and 2 as well as I. A. No. 836/94 in Suit No. 208/94.

( 2 ) THE plaintiff seeks ad-interim injunction for restraining defendants, their servants, stockists, distributors, agents and retailers etc. from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in pharmaceutical preparations under the impugned trade mark "spasma PROXY-N" and its deceptive carton and blister packs or from using any trade mark/marks and/or cartons which are identical to or deceptively similar to the plaintiffs trade mark "spasmo PROXYVON" and further from doing any other thing as is likely to lead to passing-off its goods and business as the goods and business of the plaintiffs.

( 3 ) ACCORDING to the plaintiffs version the plaintiff company is a limited company duly incorporated under the Indian Companies Act, 1956 and the suit has been filed by Shri Khozem M. Mirza its duly constituted attorney vide Power of Attorney dated 11th October, 1993. The plaintiffs commenced its business in the year 1963 and is one of the leading manufacturers of pharmaceutical and medicinal preparations in India, marketing a wide range of pharmaceutical preparations, bio-agro products, bulk drugs and food supplement for the past three decades.

( 4 ) THE plaintiff in the year 1977 adopted a trade mark "spasmo PROXYON". It is an invented and coined word. Apart from the common law rights vested by virtue of prior adoption and use, the said trade mark "spasmo PROXYVON" is also registered under the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ) in favour of the plaintiff under No. 327582 in Class-5. The registration being more than seven years old and being registered in part A of the Register, conclusively valid under Section 32 of the said Act. This medicinal preparation is being sold for the last 15 years and as such required a reputation of being extremely safe and reliable drug originating from the plaintiffs company exclusively. The plaintiff had undertaken extensive advertising by spending lacks of rupees in medical journals which have been extensively distributed to a large number of medical institutions, pharmacies and drug stores throughout the country and has conducted sales of "spasmo PROXYVON" worth crores of rupees. The products of the plaintiff under the trade mark "spasmo PROXYVON" are packed in cartons, characterised by distinctive features, get-up, colour combination and lay-out having packings of 20 strips of 6 capsules each or 18 strips of 8 capsules each like Annexure B-1 and B-2. On account of superior quality of the said goods and the established market for over 16 years the plaintiffs sought exclusive right to use the respective trade mark.

( 5 ) RECENTLY it has come to the knowledge of the plaintiff that the defendant has launched a similar product bearing a deceptively similar trade mark "spasma-PROXY-N". The get-up, design, placement and colour combination appearing on the packing cartons and the blister packings in which the pharmaceutical preparations of the defendants are being sold are deceptively similar to that being used by the plaintiff. The said fact is evident on a bare perusal of the two packings. The corresponding outer-cartons of the plaintiffs and defendants have been annexed as Annexure C-1 and C-2 to the plaint. This adoption is actuated by malafides with an intention to encash upon the goodwill and reputation belonging to the plaintiff. The adoption and use of the trade mark "spasma PROXY-N" and the packings thereto which are visually, phonetically and/or structurally similar to the packings and the registered trade mark "spasmo PROXYVON" of the plaintiff in respect of the said medicinal preparations is bound to lead to confusion and deception amongst the public and trade and would create an impression that the defendant s products are in some way connected with the products