JUDGMENT
K. Ramamoorthy, J.
(1) The plaintiff Ajendra Kumar Aggarwal, Proprietor of Dayal Medico carrying on business in Mathura has filed the above suit against two defendants for an injunction restraining infringement of trade mark and injunction on the ground of passing off. The product invented and manufactured by the plaintiff and the first defendant arc Ayurvedic medicines. According to the plaintiff he is engaged in the business of manufacturing and marketing Ayurvedic medicines for the treatment of Stop Menses Clear. He has been in the business since January, 1990 carrying on business under the trade Mark MENSUROL. The trade mark according to the plaintiff is registered. Originally the business was carrying on by a parter and now he is the proprietor. According to the plaintiff, relating to the carton and logo the plaintiff has applied for registration. It is the assertion in the reply on account of distinctiveness acquired by the plaintiff and no one else in the market could use the trade mark and deceptively similar to MENSUROL.
(2) The plaintiff has given his sales figures in paragraph 7 of the plaint as follows: Year Amount in Rs. 1990-91 95,263.05 1991-92 2,06,007.30 1992-93 3,26,741.00 1993-94 3,87,400.10 1994-95 4,65,789.00 1995-96 7,99,275.00 (3) It is also the case of the plaintiff that the trade mark Mensurol logo has become synonymous with the plaintiff in view of its long continuous extensive and exclusive user.
(4) The plaintiff came to know that the defendants had started selling the same Ayurvedic medicine under the trade mark Mensure, manufactured by the first defendant and the marketed by second defendant. The case of the plaintiff is that Menscure logo chosen by the defendant is similar to the trade mark Mensurol logo of the plaintiff in its get up, make up and lettering style and also its placement and arrangement inside a rectangle. It is asserted by the plaintiff “the resemblance of the defendants impugned trade mark Menscure logo is extremely close to the plaintiffs trade mark Mensurol logo phonetically as well as visually”.
(5) It is not disputed that the plaintiff and the defendant are operating in the same line of business under the same area and the markets.
(6) The plaintiff has filed Ia No. 4146/96 for an injunction pending his suit.
(7) The Plaintiff has filed 10 documents. Document No. 1 is the certificate of registration of trade mark MENSUROL. The certificate is dated 17.4.1995. It is stated therein that the persons who had applied for registration have been using it since 20.4.1990. Second document is the advertisement made by the plaintiff for Mensurol logo and carton for registration. This is the document showing the advertisement in the Trade Mark Journal. Third document is a letter dated 22.5.1995 from the Registrar of Trade Marks to the plaintiffs advocate staling that no other person is using the trade mark MENSUROL. The Registrar of trade marks had seen the certificate alongwith the letter under Section 45(1) of the Copy Right Act, 1957 The certificate reads as follows: “IT is hereby certified that a search has been made among the collection of pending marks as well as in the Register of Trade Marks for the artistic work as a whole and that no trade mark identical with or deceptively similar to the above said artistic work (a copy of which is annexed hereto) has been registered or applied for registration under the Trade and Merchandise Marks Act, 1958. Dated this 17th day of May, 1995”.
(8) The next document shows the sales figures and also expenditure on account of advertisements, the next document is the logo of the first defendant showing the carton and the name of the trade mark MENSCURE. The next document is the copy of the newspaper Amar Ujala, Agra dated 15.4.1996 which shows the advertisement of the defendants trade mark MENSCURE. The next document is letter dated 1.2.1995 from the plaintiff to the Registrar, Trade Mark. Next document is copies of newspapers showing the advertisement made by the plaintiff for its product under the Trade Mark MENSUROL. the last document is the invoice dated 6th April, 1994 showing the sale of the plaintiffs product under the trade mark MENSUROL.
(9) The defendants filed Ia No. 4611/96 under Order Xxxix Rule 4 CPC. The stand taken by the Defendants is that there is no phonetic similarity between the Mensurol and Menscure and the logos are different.
(10) According to the defendants that except the first four letters which would indicate the nature of the disease sought to be cured, namely, Menstrual problems of ladies there is no similarity in the two products. A company called ‘Search Pharma’ has been carrying on business prior in point of time to the plaintiff. According to the defendants the first defendant is the sister concern of a private Ltd. Company which has a very large turn over more than 50 lacs. The distinctive features of the two trade marks and the cartons are mentioned in the application in the following terms:- ____________________________________________________________________________ SI.No. Menscure Mensurol On The Package ____________________________________________________________________________ ____________________________________________________________________________ 1. The name of the product is different The name of the product is and only the first four latters are different and only the first similar. four letters are similar. ____________________________________________________________________________ 2. The base colour of the package is The base colour of the package While. is Orange. ____________________________________________________________________________ 3. The name of the product is printed The name of the product is with White ink on purple base. printed with black ink on white base between two black lines. ____________________________________________________________________________ 4. The letter type is broader and The letter type is thinner. different. ____________________________________________________________________________ 5. The following inscription is made There is no such inscription. “Non-Hormonal Ayurvedic Medicine”. ____________________________________________________________________________ 6. The following warning is given There is no such warning. “CAUTION: Can Cause ABORTION. Hence, not to be used by pregnant ladies.” ____________________________________________________________________________ 7. Bears the defendants distinctive logo. There is no logo at all ____________________________________________________________________________ 8. The name of the defendant No.2 is The name of the manufacturer is printed as Marketing Company in mentioned in letter and type letters and style which are totally totally different from the different from the defendants plaintiffs product. Product. ____________________________________________________________________________ 9. Manufacturing date and batch No. is Manufacturing date and batch printed on the package. as per label. No. is ____________________________________________________________________________ 10. The name on the top and bottom of The name is both in Hindi & the package is only in English. English. ____________________________________________________________________________ 11. “3 Capsules” written on the side in “3 Capsules” written in Bold & very small letters. Capital letters in the middle. ____________________________________________________________________________ 12. The name “Menscure” is clearly The name “Mensurol” is only mentioned on front & back of the mentioned only in front of the package. package. ____________________________________________________________________________ Inside The Package ____________________________________________________________________________ 13. The colour of the capsules inside the The colour of the capsules package is “Maroon”. inside the package is “Blue” or “White & Blue”. ____________________________________________________________________________ 14. The polythene inside the package The polythene inside the containing the capsuls is plain. package containing the capsules is printed with the name of the product and the manufacturing company. ____________________________________________________________________________ 15. The polythene containing the capsules There is no Silica Gel in the also contains Silica Gel for package. absorbing moisture. ____________________________________________________________________________
(11) It is also stated that the medicine is sold on the prescription of the doctors and therefore there is no question of passing off the defendants’ product as that of the plaintiff. The defendants have filed a few documents alongwith the application. The defendants have file their advertisements alongwith the application. The boxes of the defendants and the plaintiff are shown in colour at page 25 of the application.
(12) The plaintiff does not claimed to be trading under a trade mark which has been invented by him and the name adopted by the plaintiff is a very common name which is prevailing in the medical field whether it is Ayurvedic System of medicine or Alopathic system of medicine.
(13) The Supreme Court of India in J.R. Kapoor Vs. Micronix India 1994 Supp (3) Scc 215 had occasion to consider the question whether the respondent before the Supreme Court could injunct the appellant from using the trade mark Microtel, the logo and the carton. The Supreme Court setting aside the order of the lower court held that the plaintiff/respondent was not entitled to an order of injunction. The Supreme Court had considered the name and also the logo. the Supreme Court observed as follows: “THUS microchip technology being the base of many of the products, the word ‘micro’ has much relevance in describing the products. Further, the word ‘micro’ being descriptive of the micro technology used for production of many electronic goods which daily come to the market, no one can claim monopoly over the use of the said word. Anyone producing any product with the use of micro-chip technology would be justified in using the said word as a prefix to his trade name. What is further, those who are familiar with the use of electronic goods know fully well and are not likely to be misguided or confused merely by, the prefix ‘micro’ in the trade name. Once, therefore, it is held that the word ‘micro’ is a common or general name descriptive of the products which are sold or of the technology by which the products are manufactured, and the users of such products are, therefore, not likely to be misguided or confused by the said word, the only question which has to be prima facie decided at this stage is whether the words ‘tel’ and ‘nix’ in the trade names of the appellant and the respondent are deceptive for the buyers and users and are likely to misguide or confuse them in purchasing one for the other. According to us, phonetically the words being totally dissimilar are not going to create any such confusion in the mind of the users. Secondly, even the visual impression of the said two trade names is different”.
(14) I am of the view that the principle laid down by the Supreme Court in the above case governs the instant case. The appearance of two boxes and the trade marks thereon look entirely different and there is no phonetic similarity between the two trade marks. A close study of the carton would also show that they are distinct and different and there is no scope for any confusion. The plaintiff can rely upon the registration only if there is any phonetic similarity.
(15) On the facts and circumstances, I am not able to come to the conclusion that the plaintiff has made out a prima facie strong case for the grant of injunction pending the suit. The balance of convenience is also not in favour of the plaintiff. Therefore, application No. Ia 4146/96 filed by the plaintiff under Order Xxxix Rules 1 and 2 for the grant of injunction is dismissed. Ia No. 4611/96 filed by the defendants under Order Xxxix Rule 4 is allowed. There shall be no orders as to costs. Post the matter for further proceedings on 17.10.1996.