The court emphasized the need to consider the differences in essential features, the nature and use of the products, and the balance of convenience in determining deceptive similarity in trademark infringement cases.

PRADEEP NANDRAJOG, J.

( 1 ) ON 6. 9. 2006 while issuing summons ir the suit, taking cognizance of IA. No. 9988/06 filed by the plaintiff under Order 39 Rules 1 and 2 CPC, following ex-parte ad-interim order was passed :-

"1]. Notice returnable for 5th October, 2006.

2]. Plaintiff is the registered proprietor of the trademark 'loprin1 in respect of pharmaceutical products. Registration in favour of the plaintiff is since 20th september, 2000 but goods under the said trade name/mark are stated to be marketed by the plaintiff since the year 1994.

3]. Sales effective from the year 2000 onwards have been stated in para 7 of the application. The sales exceed Rs. 295 lacs per annum for each of the six years.

4]. Defendants have adopted the word/ mark 'loparin'.

5]. Objection taken by the plaintiff is to the visual and phonetic similarity in the trademark/name adopted by the defendants.

6]. A perusal of the trademark/name adopted by the defendants shows that they have inserted the letter 'a' midway between the trademark of the plaintiff. e. letter 'a' finds itself between the letters 'lop' and 'rin'.

7]. Prima facie it is a case of phonetic as well as visual similarity, tested on the principle of a common man with the usual imperfect memory, seeing the goods of the defendants and from his memory recollecting those of the plaintiff and getting misled.

8]. I am satisfied that delay occasioned by putting the defendants to prior notice is likely to defeat the purpose of the injunction.

9]. Goods are pharmaceutical goods and a stricter standard have to be applied.

10]. However, lest business of the defendants be affected all of a sudden, and noting that as per case pleaded by the plaintiff, it learnt about the offending activity of the defendants in May, 2006, i direct that after 30 days from today, defendants or any person acting under the authority of the defendants would not sell pharmaceutical preparations under the trademark 'loparain' or under any other mark which is deceptively similar to that of the plaintiff. e a mark which uses the letters 'lop' or 'rin'.

11]. 30 days time is being granted to the defendants to effect the changeover.

12]. Compliance with Order 39 Rule 3 cpc be made within three days. "

( 2 ) LA. NO. 10893/06 has been filed by the defendant invoking Order 39 Rule 4 CPC praying that the ex-parte injunction be vacated.

( 3 ) CASE of the plaintiff is that 'mm Labs' was a unit of Uni-Distributors Pvt. Ltd. which was manufacturing and selling Pharmaceuticals products since 1994. Amongst others, since 1994 said unit was manufacturing and selling an analgesic drug marketed under the trade name LOPRIN, a coined word derived from 'low dose of aspirin', drug being for combating cardiological problems such as prevention of strokes, recurring angina, venous, thrombosis and embolism. Since 1999 it was manufacturing and selling 'loprin-DS'. Registration of LOPRIN was obtained under the Trade and Merchandise Act, 1958 on 20. 9. 2000. That Unichem Laboratories Ltd. markets LOPRIN for the plaintiff. That reputation and goodwill for LOPRIN can be gauged from the following :

Year Product Name Promotional expenses Value (Rs. in Lac) 2000-01 LOPRIN 3988345 . . LOPRIN DS 1484071 424. 15 2001-02 LOPRIN 5113764 . . LOPRIN DS 2124547 370. 86 2002-03 LOPRIN 4939050 . . LOPRIN DS 2124297 305. 39 2003-04 LOPRIN 5175633 . . LOPRIN DS 1871016 286. 15 2004-05 LOPRIN 4980220 . . LOPRIN DS 1648062 295. 68 2005-06 LOPRIN 5512460 . . LOPRIN DS 1769654 322. 07

( 4 ) THAT by virtue of a Business Transfer agreement dated 1. 12. 2003, Uni Distributors pvt. Ltd. sold business of it's unit 'm. M. Labs' to plaintiff and hence proprietory right in the trade name LOPRIN and LOPRIN-DS vested in plaintiff.

( 5 ) THAT in May,2006, plaintiff came across impugned product of the defendants being marketed under the trade name 'loparin'. That said act constitutes a blatant and flagrant infringement of the pla