The main legal point established in the judgment is the requirement to prove deceptive similarity for trademark infringement. The court emphasized the importance of distinctiveness, pricing differences, and the specialized nature of the product in determining deceptive similarity.

1. IA 4555/2007 has been filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) by the plaintiffs seeking an ad-interim injunction restraining the defendant from using the mark ‘TEMOKEM’ in respect of the pharmaceutical product — Temozolomide — on the ground that the mark ‘TEMOKEM’ is deceptively similar to the plaintiffs’ registered trademarks ‘TEMODAL’ and ‘TEMODAR’ in relation to the very same pharmaceutical product — Temozolomide. IA No. 6041/2007 has been filed under the provisions of Order 39 Rule 4 CPC by the defendant seeking the vacation of the ex parte order passed in IA No. 4555/2007 on 23.04.2007 whereby the defendant was restrained from launching /using, advertising, promoting, stocking, offering for sale or distributing or otherwise using the trademark

relation to drugs used for treatment of brain cancer. The plaintiffs seek the confirmation of the order dated 23.04.2007 till the disposal of the suit and the defendant seeks the vacation of the same.

2. The case of the plaintiffs is that their predecessor synthesized the compound Temozolomide in 1984. Through 15 years of research and development by the plaintiffs, the said compound was found to be useful as a drug for treatment of brain cancer. Temozolomide, according to Wikipedia — an encyclopaedia on the internet, is an oral alkylating agent used for the treatment of refractory anaplastic astrocytoma— a type of cancerous brain tumor. Temozolomide is a derivative of imidazotetrazine. According to the plaintiffs, in 1999 they applied the pre-existing mark ‘TEMODAL’ in respect of the drug (Temozolomide) and that from 1999 to 2004 the plaintiffs were the sole users of the mark ‘TEMODAL’. In 2004 some Indian manufacturers used similar names.

3. The mark ‘TEMODAL’ was registered in favour of the plaintiff No. 3 in India vide registration No. 687936 with effect from 23.11.1995 in Class 5 which, inter alia, related to pharmaceuticals including alkylating cytotoxic agents for the treatment of various types of cancer. Similarly, the mark ‘TEMODAR’ was also registered in favour of the plaintiff No. 3 in India vide registration No. 888816 with effect from 29.11.1999 under the

.4. It was contended on behalf of the plaintiffs that the plaintiffs had exclusive rights in respect of the registered trademarks ‘TEMODAL’ and ‘TEMODAR’ and that the defendant’s mark ‘TEMOKEM’ used for the very same drug — Temozolomide— constituted an infringement of the plaintiffs’ registered trademarks and, therefore, the plaintiffs were entitled, straightaway, to an interim injunction restraining the defendant from using the mark ‘TEMOKEM’. It was also contended on behalf of the plaintiffs that while the plaintiffs’ trademarks were registered, the defendant’s trademark was not registered. It was also contended that ‘TEMODAL’ and ‘TEMODAR’ have acquired distinctiveness and are well-known and the said marks were used by the plaintiffs worldwide. It was also contended that the prefix ‘TEMO’ constituted an essential feature of the plaintiffs’ said registered trademarks and the same could not be appropriated by the defendant. It was contended that the prefix ‘TEMO’ could only be used exclusively by the plaintiffs and by no other person. It was also contended that while there have been infringements in India inasmuch as since 2004 some persons have used the prefix ‘TEMO’ in respect of their products involving Temozolomide, such infringements have not been rampant and that the plaintiffs have taken recourse to law in respect of all such alleged infringers which have come to the notice of the plaintiffs. On behalf of the plaintiffs reliance was placed on:-

.(1) Astrazeneca UK Ltd. & Anr. V. Orchid Chemicals &

.(4)Milmet Oftho Industries & Ors. v. Allergan Inc.: (2004) 12 SCC 624;

.(5)Pfizer Ireland Pharmaceuticals v. Intas Pharmaceuticals & Anr.: (2004) 28 PTC 456 (Del.);

.(6)Hoechst Pharmaceuticals Ltd. & Ors. v. Govern