The main legal point established in the judgment is that for a trade mark infringement claim, the use of a trade mark must be identical with or deceptively similar to the registered trade mark, and sufficient distinction can prevent infringement.

Tapen Sen, J.

1. This appeal is directed against the Order dated 11.12.2003 passed by the Additional District Judge, Gurgaon in Civil Suit No. 2 of 2003 whereby and whereunder he was pleased to hold that there was no prima facie case in favour of the Appellants for grant of ad interim injunction and, therefore, dismissed their application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure.

2. Learned Counsel for the Appellants submitted that the Appellant No. 1 is the proprietor while the Appellant No. 2 is the licenced user of the trade mark "GLUCON-D" which is registered under registration No. 305664/30. Registration was made on 21.5.1975 in relation to goods described as:

GLUCOSE (FOR FOOD), FLOUR AND PREPARATIONS MADE FROM CEREALS, BREAD, BISCUITS (NOT FOR ANIMALS), PASTRY AND CONFECTIONARY (NON-MEDICATED), MILK CHOCOLATE.

3. According to Ms. Anuradha Salhotra, the initial registration was in the name of GLAXO LABORATORIES (INDIA) LIMITED and in 1994 the trade mark "GLUCON-D" became the property of HEINZ ITALIA S.R.I, (the Appellant No. 1). It is further submitted that the trade mark "GLUCON-D" was being used in India by the predecessors of the Appellants namely GLAXO LABORATORIES since 1990 and by them since 1994. The goods under the trade mark "GLUCON-D" have consistently been sold in a package which is distinct, being green in colour showing a family of three together with the words "GLUCON-D". In July 2002, the Appellants came to learn that the Respondents (Dabur India Limited) had launched a product under the trade mark "GLUCOSE-D" in a packet which was deceptively similar to the package containing the product "GLUCON-D" of the Appellants. It is stated that thereafter the Appellants, sent notice to the Respondent to desist from using such a package but, they refused to comply. Thereafter, the Appellants filed a suit for infringement and for passing off in the Court of learned District Judge at Gurgaon and the same came to be registered as Suit No. 2 of 2003. The Plaint was accompanied by an Application under Order 39 Rules 1 and 2 for grant of interlocutory injunction restraining the Respondents, their successors, assigns, representatives and servants from using the trade mark "GLUCOSE-D" or any other trade mark that was deceptively similar to the registered trade mark belonging to the Appellants namely "GLUCON-D". The Appellants before the Court below came out with a case that the package of "GLUCOSE-D" was so very identical to the package of "GLUCON-D" that the overall impression which came to be given out was that any average man of imperfect reflection was bound to get confused. In reply to the notice sent by the Appellants, the Respondent admitted the use of the trade mark "GLUCOSE-D" but denied that the boxes/package used by them were similar to the ones used by the Appellants.

4. The Respondent before the Court below contested the suit and opposed the grant of ad interim injunction. According to them, the expression "GLUCOSE" was a generic description of the product being sold by the Respondent and no monopoly could be claimed in respect of such an expression by anyone. According to them, the expression "GLUCOSE" signifies well known ingredients used in the composition of the product namely, Dextrose Monohydrates and Vitamin-D which constitute Glucose. It was also their case that there was no infringement of the trade mark "GLUCON" by user of the generic description of the goods by the terms "Glucose-D" and that there was no deception nor any similarity between the Cartons of the two products inasmuch as they had specifically used the words "DABUR GLUCOSE-D" and that they had been selling their goods as such, having a green background since 1989 without any objection. They also asserted that the colour green was chosen by the Legislature in the Notification under the Provisions of Prevention of Food Adulteration Rules, 1955 as a colour symbolising "vegetarian food". The Respondents also c