The judgment establishes the principle that the similarity of trade marks and the maintainability of an action for infringement must be assessed in accordance with the provisions of the Trade Marks Act, 1999, and the likelihood of confusion or deception.

Mukundakam Sharma, C.J.

1. The appellants/plaintiffs have come up in this appeal being aggrieved by the order dated 16th May, 2006 passed by the learned Single Judge in is Nos. 8078 & 8561/2005 in CS (OS) No. 1421/2005, vacating the interim injunction which was granted on 6th October, 2005 and thereby allowing the application filed by the defendant-respondent under Order XXXIX Rule 4 CPC and dismissing the application filed by the appellants/plaintiffs under Order XXXIX Rules 1 and 2 CPC.

2. The appellants as plaintiffs have filed the aforesaid Suit praying for issuance of permanent injunction restraining the respondents/defendants from using the registered trade mark Meromer alleged to be deceptively similar to Meronem, the trade mark of the appellant/plaintiffs. In the Suit, an application was filed by the appellants/plaintiffs under Order XXXIX Rules 1 & 2 CPC praying for temporary injunction restraining the respondent/defendant from using the aforesaid trademark Meromer. The learned Single Judge, while issuing summons in the Suit, entertained the aforesaid application and issued notice thereon. While doing so, on 6th October, 2005, an ad interim inunction was also granted restraining the respondent/defendant from using the trade name Meromer which is deceptively similar to Meronem, the trade name of the appellants/plaintiffs and also from selling, marketing, or in any manner dealing with the pharmaceutical products under the name Meromer. The respondent/defendant filed an application under Order XXXIX Rule 4 CPC. Both the applications were taken up together by the learned Single Judge and by the impugned order, the ad interim injunction granted earlier was vacated. Consequently he dismissed the application filed under Order XXXIX Rules 1 & 2 CPC with a further direction that the respondent/defendant would maintain accounts of sale of the drug under the trade name Meromer which shall be submitted to the Court every half yearly.

3. The present appeal is filed questioning the validity of the aforesaid order on which we have heard the learned Counsel appearing for the parties. The learned Counsel for the parties have drawn our attention to the various documents which are placed on record and also to various judgments of this Court as also of the Supreme court to which reference shall be made at the time of appreciation of the records and while recording our findings thereon.

4. The appellants/plaintiffs alleged that they have become owners of the registered trade name Meronem in Class-5 in India by virtue of assignment by Zeneca Limited through a deed of assignment dated 4th January, 2000 and further dated 9th August, 2000. It was also alleged that since 1995-96 the drug under the brand name Meronem is being marketed by the appellants/plaintiffs over 89 countries. It was also alleged that by trade mark user agreement effective from 1st March, 2002 between the 1st appellant /plaintiff and 2nd appellant /plaintiff, the first appellant/plaintiff licensed the 2nd appellant/plaintiff the trade mark Meronem for use in India.

.5. The respondent/defendant launched the drug "Meromer in India some time in November, 2004 and they were granted registration of the said trade name Meromer on the basis of the application for registration filed by it on 2nd August, 2004 in Class-5. The registration certificate is dated 1st December, 2005. Consequently, it was alleged that the said registration of the trade mark, Meromer dates back to the date of the application i.e. 2nd August, 2004. It was also pleaded by the respondent/defendant that the registration with respect to the trade name Meromer was completed on 30th August, 2005 even prior to the institution of the aforesaid Suit by the appellants/plaintiffs and also that the aforesaid trade name of the respondents/defendants was advertised in the Trade Mark Journal dated 28th February, 2005 and that the time prescribed for opposition to the grant of registration expired on 30th August,