The burden of proof on an ex-employee defendant in a trade mark infringement case and the relevance of uncontroverted evidence, such as the Court Commissioner's report, in establishing deceptive similarity in trade marks.

JUDGMENT

Rajiv Sahai Endlaw, J. - This appeal, under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) read with Section 13(1A) of the Commercial Courts Act, 2015, impugns the order (dated 6th January, 2021 of the Commercial Court-02, West District, Tis Hazari Courts, Delhi in CS (COMM) No.245/2020 filed by the respondent/plaintiff against the appellants/defendants) allowing the application of the respondent/plaintiff under Order XXXIX Rules 1&2 of the CPC, in a suit for permanent injunction for restraining infringement of trade marks and passing off and ancillary reliefs, and restraining the appellants/defendants from using the subject trade marks.

2. This appeal came up first before this Court on 23rd February, 2021, when the counsel for the respondent/plaintiff appeared on advance notice and accepted notice. The Commercial Court having granted three months' time on 6th January, 2021 i.e. till 6th April, 2021 for the interim injunction to become operative, the appeal was posted for hearing on 24th March, 2021, clarifying that the pendency of the appeal would not come in the way of the suit, from which this appeal arises, proceeding further. However, on 24th March, 2021, the appeal could not be taken up for hearing and was posted for today.

3. We have heard the counsel for the appellants/defendants and the senior counsel for the respondent/plaintiff.

4. Need is not felt to elaborate the pleadings of the parties, since the counsel for the appellants/defendants has confined the challenge to the interim order granted by the Commercial Court to the prima facie finding arrived at by the Commercial Court, of 'deceptive similarity', for granting the interim injunction. It is informed, that otherwise it is not in dispute that the marks of the respondent/plaintiff are registered and the respondent/plaintiff is the prior user thereof.

5. The contention of the counsel for the appellants/defendants is, that the prima facie finding arrived at by the Commercial Court, of the marks SULTICA, NUGERMINA and DOCOMUST of the appellants/defendants being deceptively similar to the marks SALTUM, REGERMINA and NEOMUST of the respondent/plaintiff, could not have been arrived at in law as enunciated in Astrazeneca UK Limited vs. Orchid Chemicals and Pharmaceuticals Ltd.,MANU/DE/0869/2007 (DB) and Sun Pharmaceutical Industries Ltd. V. Anglo French Drugs & Industries Ltd.,MANU/DE/2261/2014 (DB). It is argued, that the Commercial Court mis-applied the test of deceptive similarity to arrive at the prima facie finding and disregarded the principles applicable to pharmaceutical products.

6. It is informed, (A) that the products, under the mark SULTICA of the appellants/defendants as well as under the mark SALTUM of the respondent/plaintiff, are for treatment of bacterial infection, with SULTAMICILLIN TOSYLATE being the active ingredient thereof; while the product under the mark SULTICA of the appellants/defendants is only available in the form of tablets, the product SALTUM of the respondent/plaintiff is available not only in the form of tablets but also in the form of injectibles; (B) that the products, under the mark NUGERMINA of the appellants/defendants and under the mark REGERMINA of the respondent/plaintiff, are probiotics; while NUGERMINA of the appellants/defendants is available only in liquid form, REGERMINA of the respondent/plaintiff is available in powder as well as capsule form; both are for treatment of antibiotic induced diarrhea; and, (C) that the product under the mark DOCOMUST of the appellants/defendants is available only in liquid form and is for general well-being and development, intended for pediatric use; on the contrary the product under the mark NEOMUST of the respondent/plaintiff is for supporting the treatment of arterial diseases in adults.

7. The counsel for the appellants/defendants has also underlined that all the three products are Schedule H drugs, available only against doctors' prescription and which cannot be sol