The main legal point established in the judgment is that the similarity between trademarks, the nature of the products, and the likelihood of confusion or deception are crucial factors in determining infringement and passing off under the Trade Marks Act, 1999.

JUDGMENT :

S. Ravindra Bhat, J.-

1. The Plaintiff, who sues the Defendant for permanent injunctive relief and delivery up in respect of its trademark, claiming infringement, seeks an ad-interim temporary injunction under Order 39, Rules 1 and 2 CPC (CPC). This Court had granted ex-parte injunction; the counsel for parties were heard on the question of confirmation of that order, made on 11.3.2005. This order disposes off that application.

2. According to averments in the suit, the trademark DIGEPLEX was adopted by the Plaintiffs predecessor in title, Teddington Chemical Factory Private limited, in 1958 in India. The Plaintiff avers that, the said Teddington Chemical Factory Private limited, applied for and obtained registration of the trade mark DIGEPLEX under Trade Mark Registration No. 186228 in Class 5 for pharmaceutical preparations containing vitamins. Pursuant to an order dated 21st June, 1962, by the Registrar of Trade Marks, Rallis India Limited was recorded as a subsequent proprietor of the trade mark with effect from 1st May. 1962. A copy of the Trade Mark Registration certificate along with certificate for use in legal proceedings is enclosed with the plaint.

3. The Plaintiff avers that by Deed of Assignment of Trade Marks dated 29th March, 2001, entered into between Rallis India Limited and Shreya Impex Private Limited, the right, title and interest in and to the said trade mark was assigned by Rallis India Limited to the Plaintiff. With effect from 6th June, 2001, the name of "Shreya Impex (P) Limited" changed to Shreya Life Sciences Private Limited, the Plaintiffs. The Plaintiffs thus claims ownership of the registered trade mark DIGEPLEX. Documents in support have been filed.

4. The Plaintiff claims that it filed the necessary Applications for recording itself as subsequent proprietor of the trade mark DIGEPLEX, which is pending with the Trade Marks Registry. The Plaintiff avers that the registration of the said trade mark was renewed from time to time and it is valid and subsisting. The Plaintiff claims that the goods bearing the trade mark DIGEPLEX have been openly, continuously and extensively used by it and its predecessor-in-title for the more than 35 years in India. Due to long and extensive use, the said trade mark is been exclusively associated with the Plaintiffs concern only. The goods bearing the mark DIGEPLEX is sold and available in the market in various dosage forms and packs. DIGEPLEX Liquid (100 and 200 ml glass bottle), DIGEPLEX Double Strength (in 100 ml glass bottle), DIGEPLEX drops (in 15 ml glass bottle), DIGEPLEX-T (in tablet forms), DIGEPLEX preparations which are available in their liquid form contain digestive enzymes and they are recommended for digestive disorders or in order to help them with better digestion. The DIGEPLEX-T which is available in tablet forms contain PANCREATIN IP 500 mg and are used in treatment acute and chronic pancreatitis. The Plaintiffs products are allopathic medicines. The brand DIGEPLEX is a legend in itself.

5. The Plaintiff urges that on account of the superior quality and expertise, of the preparations manufactured and marketed by it and its predecessors-in-title under the trade mark DIGEPLEX, the goods command huge reputation and goodwill in the market, both among the doctors and the consuming public. The long, extensive and continuous use of the mark DIGEPLEX has resulted in its acquiring a unique and enviable reputation and goodwill among the trade and public.

6. The growth of the Plaintiffs' business is claimed by the significant growth in sales of their preparation bearing the trade mark DIGEPLEX. The Plaintiffs claims that it sold the said preparation with the mark DIGEPLEX to the extent of Rs. 34.18.Crores (Rupees Thirty Four Crores Eighteen lakhs only) during September, 2001 to December, 2004. The Plaintiff has enclosed copies of invoices to show large scale use of its goods under the trademark DIGEPLEX.

7. The Plaintiff alleges that in July 2004, it, for