The judgment established the need for a stricter approach in cases involving medicinal products, emphasizing the potential life-threatening consequences of confusion in the sale of pharmaceutical products.

JUDGMENT :

Mahmood Ali Khan, J.-

1. In a passing off action the plaintiff has filed an application is 8234/03 (Order 39, Rules 1 & 2 CPC) for grant of an interlocutory injunction order fur restraining the defendants from using the trademark 'REFORM' and from doing any other thing as may lead to confusion or deception resulting in passing off defendants' goods as those of the plaintiff sold under the trademark 'REFIRM'.

2. plaintiff is a company which is manufacturing and marketing a large number of pharmaceutical preparations for different diseases. plaintiff manufactured medicine for osteoporosis and marketed it under the trademark 'REFIRM'. It also applied for this trademark to be registered in its name on 30.1.0.2001. By virtue of plaintiff's prior adoption of the trademark 'REFIRM' bona fidely the plaintiff had become proprietor thereof. It started marketing the medicinal preparation under this trademark in January, 2002. It has become best selling pharmaceutical preparation in its segment. Trademark 'REFIRM' had acquired immense reputation and goodwill and had come to he exclusively associated and identified and recognized with the plaintiff. plaintiff on account of continuous and exclusive use of the trademark 'REFIRM' and extensive publicity and advertisement has acquired under Common Law right of exclusive and undisturbed use of the said trademark in relation to the goods of its manufacture and sale. plaintiff spent as much as Rs. 10.00 lac on the publicity and advertisement of its product in the year of its launch. In February, 2003 plaintiff came to know that defendant No. 2 is manufacturing and defendant No. 1 is marketing its medicinal preparation for treatment of osteoporosis under the trademark 'REFORM'. plaintiff served legal notice but did not receive any reply. It issued a reminder on 5.5.2003. Defendant No. 1 sent its reply dated 12.5.2003 which showed that the defendant far from desisting, intended to continue with the infringement of the plaintiff's trademark. Defendants' adoption of the trademark 'REFORM' is visually, phonetically and conceptually similar to the trademark of the plaintiff in respect of the similar goods and it would lead to confusion and deception in the around of the customers that they were buying the goods of the plaintiff. Defendants had infringed upon the proprietory right of the plaintiff under the Common Law right acquired for exclusive use of the trademark 'REFIRM' by the plaintiff. The plaintiff prayed for grant of relief of permanent injunction restraining the defendants from manufacturing and selling its product adopting trademark 'REFORM' which was deceptively similar to the plaintiff's trademark 'REFIRM'; a decree of mandatory injunction directing the defendants to deliver up all the labels, stationery articles, blocks, dies and any other material bearing the impugned get-up/layout for the purpose of destruction/erasure; a decree of rendition of accounts of the profit illegally earned by the defendants and; a decree for damages of Rs. 5.01 lacs.

3. Counsel for defendants had stated that the reply to the interlocutory injunction order and the written statement has been filed yesterday. Same had not been added to the record but for hearing on the ad interim injunction application, a copy of the reply and the written statement which was supplied to counsel for plaintiff was produced which has been taken into consideration.

4. Defendant No. 1 in the written statement refuted the allegation of the plaintiff that it was infringing the proprietory right of the plaintiff in the trademark 'REFIRM' by manufacturing and selling its own product adopting trademark 'REFORM'. A discrepant allegation was made in regard to the time since when the defendants started manufacturing and selling its medicinal products under the trade mark 'REFORM'. In para-1 of the preliminary submissions it was alleged that defendant No. 1 adopted this trademark in June, 2002. In para-10 of the reply on merit it was m