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1st March 2021

Shephali

REPORTABLE

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

INTERIM APPLICATION (L) NO. 142 OF 2021

IN

COMMERCIAL IP SUIT (L) NO. 136 OF 2021

Franco Indian Pharmaceuticals Pvt Ltd

…Plaintiff

Versus

Corona Remedies Pvt Ltd

…Defendant

WITH

INTERIM APPLICATION NO. 374 OF 2021

IN

COMMERCIAL IP SUIT (L) NO. 136 OF 2021

Corona Remedies Pvt Ltd

…Plaintiff

Versus

Franco Indian Pharmaceuticals Pvt Ltd

…Defendant

Mr Amit Jamsandekar, with Mr Kiran Mehta, Mr Vighnesh Kamat &

Ms Archita Gharat, i/b Kiran J Mehta, for the Plaintiff.

Mr Vikas Khera, with Mr Amit Kukreja & Mr Ashish Rohra, for the

Defendant.

CORAM: G.S. PATEL, J

DATED:

1st March 2021

ORAL JUDGMENT:-

Shephali

Mormare

Digitally signed

by Shephali

Mormare

Date: 2021.03.15

12:01:35 +0530

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1st March 2021

1.

The Plaintiff, Franco Indian Pharmaceuticals Pvt Ltd

(“Franco Indian”), and the Defendant, Corona Remedies Pvt Ltd

(“Corona Remedies”), are both pharmaceutical companies. The

contest in this trade mark infringement and passing off action is

between Franco Indian’s mark STIMULIV, an Ayurvedic

preparation sold in syrup and tablet form, and Corona Remedies’

STIMULET, an allopathic formulation used only in the treatment

for breast cancer disorders and infertility.

2.

The Suit was filed in November 2020. Since then, Affidavits

in Reply, Rejoinder, and further Affidavits have been filed.

3.

I have heard Mr Jamsandekar for the Plaintiff and Mr Khera

for the Defendant at a considerable length, and with their assistance

considered the rival submissions. There is also before me Corona

Remedies’ Interim Application No. 374 of 2021 for rejection of the

Plaint. Whether this is under Order VII Rule 11 of the Code of Civil

Procedure 1908 (“CPC”) or Section 151 is somewhat uncertain.

The present order will dispose of both, the principal Interim

Application filed by Franco Indian, and the opposing Interim

Application No. 374 of 2021 by Corona Remedies.

4.

The reliefs in Franco Indian’s Motion are for an injunction in

the usual form against Corona Remedies from using its mark

STIMULET / STIMU-LET so as to infringe Franco Indian’s

STIMULIV mark; and for a corresponding injunction in passing

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off. Thus, the only reliefs sought are in respect of the trade mark.

There is no case in copyright infringement.

5.

Having carefully considered the rival submissions, I am not

persuaded that the various defences raised by Corona Remedies

have enough substance to defeat the injunction application by

Franco Indian. I am also not persuaded that there is any merit at all

in Corona Remedies’ Interim Application seeking a rejection of the

Plaint. For the reasons that follow, I have made Franco Indian’s

Interim Application absolute in terms of both prayers, and have

dismissed Corona Remedies’ Interim Application for rejection of

the Plaint.

6.

I begin this judgment by turning directly to the question of

similarity between the two marks. It seems to me that this is a

determinative, and even dispositive, threshold consideration. If the

marks are dissimilar then nothing remains to be done, and Franco

Indian must fail. It is only if there is a similarity that the other

defences will need to be considered.

7.

I approach this question of similarity from two distinct

perspectives. The first is the usual test of common perception upon

seeing the marks. There is no doubt that they are visually similar.

The distinction between them is only of a pair of vowels and pair of

consonants. Franco Indian uses ‘IV’ as the last two letters of its

mark. Corona Remedies uses ‘ET’ as the last two letters of its rival

mark. In a country where pronunciation in E