The use of a trademark that is phonetically and visually similar to a registered trademark, along with similar packaging, constitutes trademark infringement.

( 1 ) THE plaintiff has filed a suit alleging that its registered trade mark "calmpose" has been infringed by the defendant, who is manufacturing similar medicine and marketing under the mark of "calmprose". The prayer in the suit is for a perpetual injunction and for a decree for rendition of accounts.

( 2 ) ALONG with the plaint the plaintiff has also filed an application under Order 39, Rules 1 and 2 Civil Procedure Code and has prayed for an ad interim injunction. It is averred that the plaintiff has had the trade mark registered since 6th March 1970 and has sold "calmpose" worth about Rs. 40. 16 crores since its adoption and has spent about Rs. 16. 43 lakhs on sales promotion from January to August, 1987. The said medicine are Diazepam tablets of 5 mg each. It is also contended that not only is the mark of the defendant phonetically and visually similar, but even the packing of the defendant of the said medicine is similar to that of the plaintiff. The plaintiff is using two colours, namely, silver and brown and the packing is done in aluminium foil on one side and polythene film on the other ; and the packing of the defendant is similar to that of the plaintiff.

( 3 ) AD interim ex parte injunction was issued. In the reply which has been filed, it is contended that the medicine in question is sold by chemists on the prescription of a medical practitioner and. therefore, the persons cannot be deceived by the said mark. It is further contended that the words used on the strips containing the medicine are different and the word "calmprose" is phonetically different from the plaintiff s mark "calmpose".

( 4 ) SHRI Bharat Inder Singh, learned counsel for the defendant has raised two contentions before me. He has firstly submitted that the two marks are phonetically different. In this connection, he relies upon a Division Bench authority reported as Stadmed Private Ltd. vs. Hind Chemicals (AIR 1965 Punjab 17 ). In this case the two words involved were "entozine" and "entrozyme". The High Court came to the conclusion that the said words were phonetically different. In my opinion, the tw6 words in the present case, namely, "calmpose" and "calmprose" are phonetically and even visually similar. What the defendant has done is to insert the letter "r" in the middle of the word and converted "calmpose" to "calmprose". The intention of the defendant clearly is to cash in on the reputation which has been built up by the plaintiff over the years in the sale of its medicine "calmpose", the turnover of which is stated to be over Rs. 40 crores. It is certainly not by accident that the defendant has coined or hit upon the word "calmprose". It is, to my mind, a deliberate attempt to adopt another person s trade mark to one s advantage.

( 5 ) THE decision of the Punjab High Court in Stadmed s case (supra) cannot be of any assistance to the defendant in the present case. The spellings of the two words "entozine" and entrozyme" are different because the word entrozyme" contained there letters R, Y and M which are not present in the word "entozine". It is true that the Court in that case felt that the two words were not phonetically similar, but in this regard reference may also be made to the following observations of another Division Bench of the Punjab High Court in the case of Anglo-French Drug. Co. (Eastern) Ltd. vs. Belco Pharma (AIR 1984 Punjab 430) where with reference to the decision in Stadmed s case (supra) the High Court observed as follows:

"we are not called upon to decide whether entrozyme and entozine are phonetically and visually similar, but if we had a case like this before us, we might have taken the view that the two names are visually and phonetically similar. "i also tend to agree with the observations of Punjab High Court in Angio French s case. In any case. I have no doubt in my mind that the two words "calmpose" and " CALMPROSE" are phonetically similar.

( 6 ) IT was then contended by the learned counse