The use of a trademark that is phonetically and visually similar to a registered trademark is likely to cause confusion among consumers and amounts to trademark infringement, even if the products are sold on the prescription of doctors.

G.C.MITAL, J.

1. Whether BEPLEX and BELPLEX can be said to be phonetically and visually similar and whether the similarity is likely to cause confusion in the minds of the purchasers, is the main point which arises for consideration in this appeal.

2. The Anglo-French Drug Company (hereinafter called the plaintiff) got BEPLEX registered as a trade-mark on 18-5-1945 and since then it has been manufacturing several medicines including Vitamin-B Complex tablets under the trade mark of BEPLEX . Somewhere in the year 1974, M/s. Belco Pharma (hereinafter called the defendant) started manufacturing medicines including Vitamin - B Complex tablets in the name of BELPLEX . When this came to the notice of the plaintiff, they served notice on the defendant not to use BELPLEX on their products as it was phonetically as also visually similar to their registered trademark and was likely to cause confusion in the minds of the purchasers of the plaintiff s products. After exchanging some notices, the present suit was filed on 5-5-1981 to restrain the defendant from using the name BELPLEX on their products. The suit was contested and it was pleaded that there was no similarity in the two names and it was not a case in which the defendant should be restrained.

3. On the contest of the parties, the following issues were framed :-

(1) Does the suit lie against M/s. Belco Pharma as alleged? OPP.

(2) Is the plaintiff concern registered owner of trade-mark BEPLEX from 1943 onwards as alleged? OPP.

(3) Is the defendant trying to pass off its manufacture of syrup BELPLEX as preparation of the plaintiff manufacturer and sold under its registered trade-mark BEPLEX aforesaid as alleged? OPP.

(4.) In case issue No. 3 is proved, has the defendant thereby caused loss to the plaintiff in business, good-will trade-name and reputation as alleged? OPP.

(5.) In case issues 3 and 4 are proved, is the plaintiff concern entitled to prohibitory and mandatory injunctions prayed for, against the defendant, its agents and servants as alleged? OPP.

(6.) In case issues 3 and 4 are proved, are the defendants liable to render accounts of profits earned by them through the sales aforesaid since May, 1978, as alleged? OPP.

(7.) Relief.

4. After evidence was led, the trial Court by its judgment and decree dt. 29-1-1982, came to the conclusion that BEPLEX and BELPLEX are in no way deceptively similar both on visual and phonetic tests and in coming to this conclusion, relied on F. Hoffimann-La Roche and Co. Ltd. V/s. Geoffrey Manners and Co. Private Ltd., AIR 1970 SC 2062. The decisions relied upon by the plaintiff were distinguished. As a consequence, the suit was dismissed. This is plaintiff s first appeal. This appeal was placed for hearing initially before me sitting singly and I considered that it was a case which should be decided by a larger Bench. That is how this appeal has been placed before us.

5. After hearing, the learned counsel for the parties and on perusal of the record, we are of the considered view that BEPLEX and BELPLEX are phonetically and visually similar and thus the trade-mark of the plaintiff is violated by the defendant by manufacturing goods under the trade-name of BELPLEX .

6. In Corn Products Refining C o. V/s. Shangrila Food Products Ltd., AIR 1960 SC 142, the registered trade-mark of the Company was GLUCOVITA , and it used to manufacture Glucose under that trade-mark. Another concern started manufacturing biscuits in the name of GLUVITA . Although the kind of products was entirely different, yet it was held that visually and phonetically the names were so similar as to cause deception in the minds of purchasers that the biscuits were manufactured by the concern which had GLUCOVITA as its registered trade-mark. The use of the word GULVITA was disallowed.

7. In K.R. Chinna Krishna Chettiar V/s. Sri Ambal and Co. AIR 1970 SC 146, a snuff manufacturer got AMBAL registered as the trade-mark and later on, another snuff manufacturer wanted ANDAL