JUDGMENT- B.N. SHRIKRISHNA, J.:---This appeal is directed against an order dated 16th December 1999 made by the learned Single Judge dismissing the Notice of Motion and vacating the ad-interim order made by the Court on 19th February 1999.

2.The plaintiffs came to Court alleging that it is a wholly owned subsidiary of a multinational company which is highly reputed and deals in pharmaceutical and consumer products; that the 1st plaintiff has been carrying on business in India since about 1966, inter alia, in consumer products, medicines, detergents and pharmaceuticals. The 2nd plaintiff is the proprietor of an internationally well known mark VICKS. The plaintiffs gave the details of their promotional expenditure figures as exceeding several million Dollars per year. The 2nd plaintiff is also the owner of several Indian registered trade marks. The figures of the sales turn over of Vicks products sold by the 1st plaintiff is said to be in crores of rupees every year. Vicks pharmaceutical products, sub-branded as ACTION-500 (a remedy against cold, nasal congestion, etc.) has been continuously manufactured and markted in India extensively by the 1st Plaintiff and the sales turnover increased from Rs. 8 crores in 1988-89 to about Rs. 53 crores in 1997-98. The advertising and marketing expenditure given for the period of 1993-98 also runs into millions of rupees. The promotional and advertising expenditure in respect of ACTION-500 also runs into millions of rupees during the aforesaid period. It is the case of the plaintiffs that ACTION-500 pharmaceutical products, also bearing the housemark VICKS. were re-launched in the market under cartons and strips having distinctive get up and colour scheme. Samples of the distinctive cartons and strips are enclosed at Exhibit "E" and Exhibit "F" to the plaint. The plaintiffs allege that the defendants have copied and/or otherwise are marketing their products in cartons and strips which are deceptively similar to the plaintiffs cartons and strips and/or likely to cause confusion as to the origin of the goods. In short, the plaintiffs allege that the defendants are passing off their sub-standard products as those of the plaintiffs and have sought remedy by way of permanent injunction to restrain the defendants from doing so. In the Notice of Motion, the plaintiffs sought temporary injunctions pending hearing and disposal of the suit and appointment of a Court Receiver as receiver of the offending cartons and strips marketed by the defendants and sold by distribution outlets and retailers. Though initially an ex-parte ad-interim order was made by the Court on 19th February 1999 in terms of prayers (a), (b) and (e) in the Notice of Motion, the learned Single Judge, after hearing the defendants, has vacated the ad-interim orders and dismissed the Notice of Motion.

3.We at once notice that the learned Single Judge has, without any matter of doubt, recorded his prima facie finding that, despite marginal variations and marginal dissimilarity, there is broad similarity between the cartons and strips of the defendants and the cartons and strips of the plaintiffs in which a pharmaceutical product stated to be a remedy against cold and congestion is being marketed. We need not be detained by discussions with regard to the manner in which such marks have to be assessed in a passing off action, for we are satisfied that the learned Judge has correctly applied the test and arrived at his conclusions, albeit prima facie, for the purpose of disposal of the Notice of Motion. The learned Judge has held against the present appellants (original plaintiffs) only on the grounds that prima facie he has been satisfied that the offending cartons and strips of the defendants were designed and marketed much prior to October 1998 when the appellants had re-launched their products in the cartons and strips which are enclosed at Exhibit "E" and Exhibit "F" to the plaint.

4.The first contention is that the learned Judge erre

Click Here to Read the rest of this document