The protection to which a man is entitled is protection against passing off, which is quite different from mere confusion. The court also held that the words 'PIO' and 'PIOZ' are dissimilar and phonetically distinct, and the plaintiff is not entitled to an injunction.

N. Dhinakar, J.

1. Plaintiff in C.S. No.58/03 on the file of the Original Side of the High Court, Madras, is the appellant in O.S.A. No.258/03 and the defendant in the said C.S. No.58/03 is the appellant in O.S. No.360/03. The said C.S. No.58/03 was filed by the plaintiff for passing off action against the defendant and along with the civil suit, he also filed O.A. No.95/03 for injunction, pending the suit, restraining the defendant/respondent from dealing with the medicinal and pharmaceutical preparation under the trade mark “PIO-15” and “PIO-30”, which according to him are identical with and deceptively similar to the plaintiff’s trade mark “PIOZ-15” and “PIOZ-30”.

2. The learned single Judge ordered notice on the said application on 28.1.03. The defendant/respondent appeared and filed his counter. He also filed O.A. No.1396/03 for issuance of notice to the plaintiff/applicant as to why he should not be prosecuted for the acts of perjury and making false statements. The learned single Judge, by a common order dated 11.7.03 dismissed both the applications. The learned single Judge, while dismissing the injunction application, held that he defendant/respondent has no registered address at Chennai and, therefore, ought to have obtained leave to sue the first defendant, who according to the learned single Judge, was carrying on business outside the jurisdiction of this Court. The learned single Judge further held that the word “PIO” is publici juris and the plaintiff/applicant had no monopoly over the same and that the products are not identical. In view of the above findings, the application for injunction sought by the plaintiff/appellant was dismissed. The learned single Judge also dismissed O.A. No.1396/03, as stated earlier, holding that no perjury has been committed by the plaintiff/appellant since the address given in the plaint of the appellant is only a bona fide mistake of fact as he believed the address to be the official address of the first defendant. Aggrieved by the said order refusing to grant injunction, O.S.A. No.258/03 has been filed by the plaintiff/appellant and aggrieved by that portion of the order refusing to initiate action for perjury against the plaintiff/appellant, the defendant has directed O.S.A. No.360/03. As the issues involved are interlinked in the two appeals, they are disposed of by the following common order.

3. The plaintiff made an unofficial search for the trade mark “PIOZ” on 26.7.00 and on 2.8.00 obtained quotation for designing “PIOZ” logo from M/s.Avenue Topographics and on 10.8.00 received ten samples of “PIOZ” logo and cartons for its approval. On 26.1.01, cartons of the plaintiff’s medicinal preparations under the trade mark “PIOZ” were made ready and on 1.2.01, preparations bearing the trade mark “PIOZ” were transferred from USV Factory to godown. On 19.2.01 they started selling the preparation bearing the trade mark “PIOZ” in the State of Andhra Pradesh and sales commenced in the State of Tamil Nadu in February, 2001. He was also selling the said preparations in other States. In the meantime, the defendant also started marketing its products under the brand name “PIO-15” and “PIO-30” in the form of tablets as could be seen from the bill of Nargiz Medicals on 4.1.03., though there is no definite material before this Court as to when the products “PIO-15” and “PIO-30” came to be marketed by the defendant. The fact remains that the products “PIO-15” and “PIO-30” were in the market atleast from 4.1.03 and it could have been much earlier also.

4. The contention of the appellant is that the plaintiff being the owner of the trade mark “PIOZ”, the defendant is not justified in passing off its products under the brand name “PIO-15” and “PIO-30”. It is not out of place at this stage to state that both the products contain “PIOGLITAZONE”, a molecule name, which is the active ingredient in various medicines meant for the treatment of diabetes.

5. We now take up the first contention