JUDGMENT :

I.A. 8731/2019 (u/O 39 R 1&2 CPC)

1. Plaintiff has filed the present suit inter-alia seeking a decree of permanent injunction against the defendants, its directors, assignees, distributors, dealers, etc., restraining them from manufacturing selling, offering for sale, advertising, directly or indirectly dealing in medicinal preparation under the impugned mark ANADAY or any other similar trademark which is deceptively similar to the plaintiff’s trademark AMADAY amounting to infringement of its registered trademark Nos. 747783, 1305303 and 1518017, delivery of the infringing goods including impugned packaging, dyes, etc., and cost.

2. Case of the plaintiff in the suit is that the plaintiff is dealing in the medicinal and pharmaceutical product under the mark AMADAY which is used for treatment of high blood pressure, heart disease and the defendant is selling its drug under the name ANADAY which is deceptively similar to the plaintiff’s well-known registered trademark and amounts to infringement of the plaintiff’s rights in its trademark; even though the drug produced and sold by the defendant under the trademark ANADAY is used for treatment of breast cancer.

3. As per the plaintiff, plaintiff first obtained the title in the trademark AMADAY by its first application bearing No. 747783 on 10th July, 1997 and thereafter started using the said trademark AMADAY from 2001. On 4th February, 2008 defendant filed its application bearing No. 1649587 for the impugned mark ANADAY which was duly opposed by the plaintiff and the defendant did not pursue the said application and vide order dated 15th March, 2016 of the Trade Mark Registry, the same was declared abandoned. On 8th October, 2016 defendant filed another trademark application for registration of the trademark ANADAY vide application No. 3384539 in Class 5 which is currently pending. In the third week of June, 2019 the representative of the plaintiff came across defendant’s medicinal preparation AMADAY at Delhi, and hence the suit.

4. Plaintiff claims interim injunction pending disposal of the suit by this application on the ground that admittedly plaintiff is the prior user and registered proprietor of the trademark AMADAY, defendant’s first trademark application was abandoned due to opposition by the plaintiff and third parties and the second application which was published on 4th March, 2019 has also been opposed. Defendant’s Counter Statement pertaining to its Trademark Application No. 1649587 has not been uploaded on the website of the Trade Marks Registry till date and besides that the plaintiff has placed on record the entire documents in its power and possession. Defendants having not assailed the abandonment order of the Trade Marks Registry, the plaintiff was all through under the impression that the defendants had never used the impugned mark. Though the plaintiff’s products are meant for exports, however even export by the plaintiff amounts to use for the purposes of the Trademarks Act, 1999 and the plaintiff is in no manner precluded from marketing its product in India and has a right to re-launch the same. Claim of the defendant that the two medicinal preparations are used to treat two different ailments cannot be accepted as the prescriptions do not contain the name of the salt or trade dress/packaging and the confusion in reading the prescription would amount to a serious lapse vitally affecting lives of the consumers. Further the test of confusion is to be seen from the perspective of an average person with imperfect recollection getting confused and in view of the two names being almost similar, any ordinary person would get confused and would not be able to distinguish between the two drugs. Reliance is placed on the decision reported as Sun Pharma Laboratories Ltd. Vs. MSN Laboratories P. Ltd. & Anr. in CS(COMM) 637/2018 decided on 4th December, 2018; AIR (1975) Delhi 149 Jagan Nath Prem Nath Vs. Bhartiya Dhoop Karyalaya; AIR (1990) Delhi 19 Hindustan Penci