BADAR DURREZ AHMED, J.

( 1 ) THE question that arises for consideration in the present application under Order 39 Rules 1 and 2, CPC is whether the plaintiff is entitled to an interim order of injunction, inter alia, restraining the defendant from using the mark 'evit' in respect of its pharmaceutical products. The plaintiff's case is that the defendant's trademark 'evit is deceptively similar to the plaintiff's registered trademark 'zevit'.

( 2 ) THE plaintiffs trademark 'zevit' is registered under Registration No. 452526 on 16. 4. 1986 in respect of Pharmaceuticals, veterinary and sanitary preparations and substances. The original registration was in the name of Eskayef ltd. The name of that company was changed to Smithkline Beecham pharmaceuticals (India) Ltd. in the year 1994. By a Deed of Assignment dated 19. 1. 1998, the said registered trademark was assigned by the said Smithkline beecham Pharmaceuticals (India) Ltd in favour of the plaintiff. It is the plaintiff's case that the trademark 'zevit' is an invented word having no dictionary meaning and thus has the highest degree of distinctiveness connoting the plaintiffs goods exclusively. According to the plaintiff, the trademark 'zevit' has been used by the plaintiff continuously, regularly and without any hindrance for the last number of years. A sample of the product was annexed as Annexure-B. It indicates that the plaintiff's product 'zevit' is a formulation which contains Zinc Sulphate Monohydrate, vitamins Bl, B2, B6, B12, Nicotinamide, Calcium Pantothenate and Vitamin C. Essentially, it is a vitamin formulation.

( 3 ) IT is alleged in the plaint that sometime in November, 2002, the plaintiff became aware that the defendant was manufacturing, marketing and selling the vitamin capsules under the trademark 'evit'.

( 4 ) AS per the written statement filed by the defendants, the products marketed by them under the trademark 'evit' are nothing but vitamin 'e' tablets. As per the defendants, the product is a single ingredient vitamin drug. The defendants' drugs are allegedly marketed under the trademark 'evit' which, according to the defendants, is derived from and adopted to identify the generic name of the drug, namely, 'vitamin E'. According to the defendants, the suffix 'vit' is common to the pharmacy trade indicating vitamin preparations.

( 5 ) FROM these brief facts, it is apparent that the plaintiff is the proprietor of the registered trademark 'zevit'. It is also apparent that the plaintiff has also been continuously using the same. The defendants mark 'evit' is not a registered mark. The defendant has been using this mark in respect of its 'vitamin E' formulations. When this plaint was filed, this Court passed an ex parte ad interim order in favour of the plaintiff on 13. 2. 2003 injuncting the defendants from manufacturing, selling and offering for sale or advertising or directly or indirectly dealing in pharmaceutical preparations under the trademark 'evit'. This ex parte interim order has continued till date. The plaintiff seeks confirmation of this order and the defendants pray for vacation of the same.

( 6 ) THE case of the plaintiff is that the registration of a trademark, by virtue of section 28 of the Trademarks Act, 1999 (hereinafter referred to as 'the said Act')gives to the registered proprietor of the trademark the exclusive right over the trademark in relation to the goods or the services in respect of which the trademark is registered and to obtain relief in respect of infringement of the trademark in the manner provided by the said Act. Infringement of registered trademarks has been specified under Section 29 of the said Act. It is the plaintiff's case that in view of the provisions of Section 29 of the said Act, infringement is established if it can be shown that the infringing trademark is identical or deceptively similar to the registered trademark in such a manner as to render the use of the mark likely to be taken as being used as a tra