ACME Pharmaceuticals Vs Torrent Pharmaceuticals Ltd.

K.A. Puj, J.@mdashThe appellant - original defendant I.e. ACME Pharmaceuticals, Ahmedabad has filed this Appeal From Order challenging the judgment and order dated 30.11.2006 passed by the learned City Civil Judge, Ahmedabad below an application Exh.6 in Regular Civil Suit No. 4703 of 2000 whereby the notice of motion application taken out by the original plaintiff - present respondent was allowed and the appellant was restrained from using his trademark ''AROXIL'' in respect of the drug ''CEFADROXIL''. The trademark of the respondent - plaintiff is ''DROXYL'' in respect of the same drug and obtained from drug ''CEFADROXIL''.

2. Initially, Appeal From Order came to be heard on 21.12.2006. It was agreed between the parties that they would supply necessary documents and matter would be heard finally. Mr. Y.J. Trivedi, learned advocate appeared for the appellant and Mr. R.R. Shah, learned advocate appeared on Caveat for the respondent. The order passed by the learned City Civil Judge was stayed. Thereafter, the matter came to be placed for hearing on several occasions and ad-interim relief granted earlier was extended from time to time. This ad-interim relief is still in existence.

3. The brief facts giving rise to the present Appeal From Order are that the appellant is sole proprietary concern and engaged in the business of manufacturing and dealing with the pharmaceuticals and medicinal preparations and is one of the well established pharmaceutical Companies in India, which markets drug formulation. The appellant has acquired very high reputation because of its quality of the drug and efficiency. The product manufactured by the appellant enjoys very high reputation amongst the medical practitioners, traders, consumers and the public and the said preparation is also sold all over the country. The appellant has adopted various trade marks for its products. Amongst various marks adopted by the appellant, the trade mark AROXIL is used since 1996 in respect of its product containing the drug CEFADROXIL. The appellant has applied for permission from the Food & Drug Administration for manufacturing the said Product and the Drug department has also issued necessary license in this respect since 1996.

4. The appellant has started use of the said trade mark AROXIL since 1996 in respect of its medicinal preparation. The product of the appellant sold under the trade mark AROXIL is available in the form of tablets. The word AROXIL is coined and invented by the appellant by taking letter ''A'' as the first letter of its own name and ''ROXIL'' as last letters of drug ''CEFEDROXIL''. The appellant has spent huge amount for pupularising the said preparation by various media of publication, mainly advertisement through circulation, literatures, pamphlets, visual ads etc. and the said product has already been well received by the medical professional etc. The sale of the appellant''s product AROXIL is sizable and establishes high reputation in the market for the product.

5. The respondent herein has filed a suit being Regular Civil Suit No. 4703 of 2000 on 14.09.2000 in the City Civil Court, Ahmedabad under the provisions of Trade Marks Act, inter alia, praying to restrain the appellant from using the Trade mark AROXIL, inter alia, alleging infringement / passing off of its trade mark DROXYL. The respondent, along with the said suit, also filed notice of motion application Exh.6 under the provisions of Order 39, Rule 1 & 2 of Civil Procedure Code. Initially, notice was issued and no interim relief was granted. The appellant thereafter filed its appearance and written statement along with various documents were filed. The injunction application was once dismissed for default for want of prosecution on 05.07.2004. However, the same was subsequently restored on 06.07.2004. Thereafter, the application was heard on merits and the learned City Civil Judge vide her order dated 30.11.2006 allowed the said application and granted the interim relief as prayed for.

6. Being aggrieved by and dissatisfied with the said order, the appellant approached this Court by way of this Appeal From Order under Order 43, Rule 1(r) of CPC and prayed for interim relief against operation, execution and implementation of the impugned order.

7. Mr. Harshit Tolia, learned advocate appearing with Mr. Y.J. Trivedi for the appellant has submitted that the respondent - plaintiff cannot claim any monopoly in respect of a word which is descriptive of particular drug used in medicinal preparation in the industries since years. In the present case, the trade mark of respondent is nothing else but the copy of last letters of a drug known as CEFADROXIL. In the market, either CEFA or DROXIL or CEFACROXIL is a descriptive word of the drug itself. There are many other manufacturers using the same words. For instance, like Lyka Labs Limited is using the trade mark LYDROXIL and Ethylex is using the trade mark EDROXIL. Comed Chemicals Private Limited is using the trade mark CODROXIL. Lupin Laboratories Limited is using the trade mark ODOXIL and Divine Health Care is using the trade mark DROX-KID. There are many other manufactures also who are using the said generic / descriptive word of the drug CEFADROXIL in respect of their products.

8. Mr. Tolia has further submitted that no one in the matter can have any monopoly in respect of any part of the word or letters of CEFADROXIL. The trade mark of the respondent is nothing else but adoption of last letters i.e. DROXIL from drug known as CEFADROXIL. In the pharmaceutical industries, CEFADROXIL is known as generic drug i.e. referring to the chemical / drug formulation itself. Various pharmaceutical companies are either suffixing or prefixing different words in combination with word ''CEFA'' or ''DROXIL'' with a view to coin their own trade mark in respect of the drug CEFADROXIL. However, in any case, no one can claim any monopoly in respect of any of the words either ''CEFA'' or ''DROXIL''. The trade mark of the respondent is merely an adoption of descriptive word and it can never be said to be counted or invented one. He has, therefore, submitted that from no stretch of imagination, the respondent - plaintiff can have any right in respect of the impugned trade mark. The impugned order is, therefore, perverse and in gross violation of the provisions of law.

9. Mr. Tolia has further submitted that both the trade marks are quite different either phonetically, visually or otherwise and cannot create any confusion or deception in the mind of the persons / consumers connected with the pharmaceutical industries. The trade mark of the appellant is not at all identical or deceptively similar to that of the respondent. From the label, resemblance, etc. this aspect is very evident. He has further submitted that the trade mark is used in respect of the drugs falling in Schedule H and hence, the same can be disposed only by the experts having pharmaceutical knowledge. The prominent letter in the trade mark of the appellant is ''A'', while the prominent letter of the respondent''s trade mark is ''D''. Thus, phonetically and visually also, trade marks of the appellant are not identical or similar, which can cause any confusion.

10. Mr. Tolia has further submitted that the appellant is in the market since 1996 and upto the year 2000, the respondent was totally silent. The respondent having allowed the appellant to develop its trade mark by creating / incurring huge expenditures and when the reputation of the appellant increased sizable, then came forward to grab the fruits earned by the appellant. No stay was operating in favour of the respondent right from the date of institution of the suit and it was granted only in 2006. The impugned order is also stayed by this Court and as on today, no injunction is operating against the appellant. It is settled position in law that a trade mark which is in use since long should not be stopped immediately but only if the business is yet to commence, the injunction may be granted by the Court.

11. Mr. Tolia has further submitted that in case of infringement or passing off the trade mark, the plaintiff is required to satisfy all the three ingredients i.e. prima facie case, availability of balance of convenience and irreparable loss. It is evident from the facts, evidence and circumstances of the case that all the three ingredients are in favour of the appellant. The basic principle laid down by the judicial decisions on this issue is that the mark containing the name of a drug or is indicative of a particular drug can be used by everybody and the name of the drug cannot be considered as distinguishable features and such kind of operation cannot be considered in comparison of the two marks. The suit was lingering since long only because of the fault of the respondent - plaintiff. No much weightage should be given to the registration of trade mark and use of the trade mark in respect of the medicinal preparation since the contents of both the drugs are common and generic i.e. CEFADROXIL and there are no chances of danger to the life of any human being. The registration of trade mark is always subject to other principles of law and other provisions of the Trade Marks Act. The generic or descriptive mark can never be registered and even if the same is registered, same does not confer any right in favour of its owner. Mr. Tolia has further submitted that as far as statutory provisions are concerned, as per Section 9 (a) and (b), when any trade mark is devoid of any distinctive character or when the said trade mark gives indication which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical road etc. of the goods, the same can be the absolute ground for refusal of the registration. Since the trade mark of the respondent is DROXYL and is derived from pharmaceutical preparation CEFADROXIL, it designates the kind of the goods and devoid of distinctive character. As per Section 13 of the Act, there is a specific prohibition of registration of names of chemical elements which are commonly used and accepted, name of any single chemical element or name of any single chemical compound, as distinct from a mixture, in respect of a chemical substance or preparation. Section 30(2) provides that the trade mark is not infringed where (a) the use in relation to goods indicates the kind, quality, quantity, intended purpose, value etc. There is no proviso / exception as in Section 9. Thus, the appellant cannot be restrained from using the trademark in question.

12. In support of his submissions, Mr. Tolia relied on the following judgments of the Apex Court as well as different High Courts:

In M/s Aristo Pharmaceuticals Ltd. Vs. M/s. Wockhardt Ltd., the respondent who was manufacturing a drug under the name ''SPASMO - PROXYVON'' registered in his favour, filed a suit for injunction against the appellant who was manufacturing and selling a drug called ''SPASMO-FLEXON''. The case of the appellant was that the word SPASMO objected to by respondent has been used for several drugs since long before and after respondent got its trade mark registered in the year 1977. Since the registered trade mark was descriptive in nature and the parties should be allowed to lead evidence of descriptive word, no ex-parte injunction can be granted.

In J.R. Kapoor Vs. Micronix India, Micronix was registered but since Micro is descriptive, no injunction was granted. There is no monopoly over common / general name or descriptive of products.

In Regency Sanitary Ware Private Limited v. Madhusudan Industries Limited 2001 PTC 422 (Gujarat), it is held that the appellant and the respondent both are engaged in manufacturing ceramic products. The word ''CERA'' is a generic name derived from the word ''ceramics'' - a word commonly used for all ceramic products indicating the material from which the goods are produced. In answer to the summons issued by the Trial Court, the appellant has promptly agreed not to use the trade name ''CERA'' in the distinctive encasement adopted by it and instead adopted the trademark ''Re Cera VITREOUS'' without any encasing and with a distinctive font. The trade mark ''Re Cera VITREOUS'' now adopted by the appellant is visually distinct from the trademark ''CERA'' owned by the plaintiffs. The appellant has already entered the market in or about the month of December, 1999 i.e. it has been in the market for over a period of one year. The Trial Judge has failed to appreciate that the word ''CERA'' is the derivative of a common word ''ceramic'' which is casually used for many ceramic products and cannot be a monopoly of any one manufacturer.

In SBL Limited v. Himalaya Drug Company 1997 (17) PTC 540 (DB), it is held that ''Liv.-52'' is not similar to or deceptive with ''LIV-T''. ''Liv'' made out of the word Liver - an organ of the human body, as a constituent of names of medicinal / pharmaceutical preparations with some prefix or suffix mostly suffixes meant for treatment of ailments or diseases associated with liver. Liv has thus become a generic term and publici juris. It is descriptive in nature and common in usage. Nobody can claim an exclusive right to the use of ''Liv'' as a constituent of any trade mark.

In Indo-Pharma Pharmaceutical Works Limited v. Citadel Fine Pharmaceuticals Limited AIR 1998 mad 347, plaintiff was selling its product, allopathic medicinal preparation under trade mark ''Enerjex''. Adoption of trade mark ''Enerjase'' by defendant for selling Ayurvedic medicinal preparation. Prefix for both marks viz. ''Enerj'' is common and abbreviation of generic name ''energy''. Suffix to said words ''jex'' and ''Jase'' are totally dissimilar. The Court held that the same does not create confusion in the mind of users especially when visual impression of the said two trade names is completely different. The Court further held that the total sound effect of these two words lacks any similarity. Hence, there is no infringement of trade mark of plaintiff.

In Apex Apex Laboratories Ltd. Vs. Zuventus Health Care Ltd., the appellant was the manufacturer of pharmaceutical products and has adopted the trade mark ''ZINCOVIT'' on 16.03.1988 for its product, namely, syrup and tablets and had also applied for its registration. The respondent was manufacturer and selling pharmaceutical products under the trade mark ''ZINCONIA''. The Court took the view that both the medicine preparations contain ''Zinc'' and, therefore, the word ''Zinc'' is common to the trade and is publici juris. The appellant cannot claim ownership over the said word. The words are phonetically dissimilar and the visual impression of the said names are also different and hence, hardly cause any confusion in the mind of a common consumer. The order of the interim injunction was vacated by the learned Single Judge and the said order was confirmed by the Division Bench.

In Schering Corporation and Others Vs. Getwell Life Sciences India Pvt. Ltd., defendant was using the mark ''TEMOGET'' which was deceptively similar to the plaintiff''s registered trademarks ''TEMODAL'' and ''TEMODAR''. The mark ''TEMODAL'' registered in Class 5 related to pharmaceuticals. In case of infringement, the only question that requires consideration, is whether the defendant''s trademark is deceptively similar to the plaintiffs'' registered trademarks. The Court took the view that marks are not identical and there was no phonetic or visual similarity between the marks. The term ''TEMO'' cannot be exclusively used by the plaintiff in view of the fact that it is publici juris being a clipped abbreviation of the generic word Temozolomide. Suffix ''GET'' is entirely different and distinct from the suffixs ''DAL'' and ''DAR''. The product is not an off-the-shelf product which any person can go and purchase. The product to be supplied only against demand from cancer hospitals / institutions and that too against the prescription of a cancer specialist. The plaintiff''s product is six times more expensive than the defendant''s product. Likelihood of deception being virtually nil, plaintiffs held not entitled to the interim injunction.

In Anglo Thai Corporation Limited v. Mahendra Kumar Maneklal Shah and Ors. (Bombay) (Misc. Petition No. 395 of 1972), the petitioner challenged the decision of the Registrar of Trademark holding that the respondent''s mark was not deceptively similar to the petitioner''s trademarks. While dismissing the petition, the Court, inter alia, held that neither on a critical comparison of these two devices, namely, Manhar Gripe Water and Woodwards Celebrated Gripe Water in order to see them one after the other, no one was likely to make a mistake between the respondent''s mark and the petitioner''s mark and that the words gripe water were purely descriptive and, therefore, the petitioner could claim no monopoly or exclusive right to use them.

In Cadila Healthcare Limited v. Swiss Pharma Private Limited 2002 (24) PTC 708, this Court held that the brand names of the two medicines, Spardac and Superdac are phonetically not similar or identical and the appearance, getup and size of the products are also not similar. There is no likelihood of confusion or deception in the minds of chemist, consumers or Doctors. It is not likely that the product superdec would be passed off in the name of spardac.

In F. Hoffmann-la Roche and Co. Ltd. Vs. Geoffrey Manner and Co. Pvt. Ltd., it is held that the marks must be compared as a whole. It is not right to take a portion of the word and show that because that portion of the word differs from the corresponding portion of the word in the other case, there is sufficient similarity to cause confusion. The true test is whether the totality of the proposed trademark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trademark. It is further held that on comparison of the trademarks DROPOVIT and PROTOVIT, they are not deceptively similar.

In Reckitt & Coleman of India Limited v. Medicross Pharmaceuticals Private Limited (1) (Supp.) PTC 284 (Bom), while comparing the marks ''Medisprin'' with ''Disprin'' in order to find out whether the former is deceptively similar to the latter and whether it is likely to deceive or cause confusion, each of the two words must be taken as a whole. The comparison has not to be microscopic but general and casual as that of a customer walking into a shop. On such comparison, the mark ''Medisprin'' to be dissimilar to ''Disprin''. Visually and structurally compared the impugned mark is different. The Court ultimately held that the impugned mark is neither structurally nor phonetically or visually similar to ''Disprin'' and that neither the products are same nor packaging or mode of marketing is same or similar or likely to create confusion.

13. Mr. Tolia in support of his submission that all the ingredients for the purpose of grant of injunction have not been satisfied in the present case and hence, the learned Trial Judge has committed a grave error in granting interim injunction, he relied on the following decisions of the Apex Court as well as various High Courts including of this Court:

The decision in the case of Sandhya Organic Chemicals Private Limited and Anr. v. United Phosphorous Limited and Anr. 1997 (2) GLH 307 is relied upon for the proposition that unexplained delay and acquiesce is a ground which could deny the relief of injunction prayed for by the plaintiff. It is also held that prima facie case is no ground to grant injunction unless other ingredients, viz., balance of convenience and irreparable loss are proved.

The decision in the case of Hindustan Petroleum Corporation Ltd. Vs. Sri Sriman Narayan and Another, is relied upon for the proposition that the decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial.

The decision of Ajay Mohan and Others Vs. H.N. Rai and Others, is relied upon for the proposition that the plaintiffs, while praying for the relief of interim injunction were bound to establish a prima facie case. They were also bound to show that the balance of convenience lay in their favour and unless the prayer is granted, they will suffer an irreparable injury.

The decision of Uniply Industries Ltd. Vs. Unicorn Plywood Pvt. Ltd. and Others, is relied upon for the proposition that where the areas of activity of parties in respect of goods and the trademarks in question were identical and the only question was as to which of the parties was prior user, grant of interim injunction in favour of either party merely on the basis of prima facie case without considering other aspects arising in the matters held to be improper. In such a case, rather the suit should be decided expeditiously.

14. In Bhavnesh Mohanlal Amin and Another Vs. Nirma Chemicals Works Ltd. and Another, , the Trial Court was directed to dispose of the suit within about three months of the order and interim injunction granted by the Trial Court and affirmed by the High Court restraining the appellants from using their mark NIMA being deceptively similar / identical to respondent''s marks NIRMA and NIMA maintained, subject to the condition in the peculiar circumstances of the case, that the respondents would not initiate any action for user of mark NIMA by appellants without leave of Trial Court, till disposal of the suit.

15. In SLP (C) No. 21594 of 2009 decided on 07.09.2009 in the case of Shree Vardhman Rice and Gen. Mills v. Amar Singh Chawalwala, Apex Court without going into the merits of the controversy, expressed an opinion that the matters relating to Trademarks, copy rights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of Trademarks, copy rights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.

16. After referring to the above judgment of M/s. Shree Vardhman the Apex Court in the case of Bajaj Auto Limited v. TVS Motor Company Limited 2009 AIR SCW 6018, while vacating its interim orders dated 08.06.2009 and 31.08.2009, substituted the directions to the effect that the respondent shall be entitled to sell its product but it shall maintain an accurate records / accounts of its all India and export sales. The Court has also appointed the Receiver to whom the records of such sale shall be furnished every fortnight by the respondent and the same shall be signed and authenticated by the responsible officer of the respondent. The Court has also made it very clear that it has not made any observations on the merits of the case and directed the learned Single Judge of the High Court to decide the suit without being influenced by its order or by any observations made in the impugned order of the Division Bench or in the order of the learned Single Judge granting temporary injunction in favour of the appellant.

17. In Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, , it is held that while considering an application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto viz. existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively.

18. Based on the above submissions and the judicial pronouncements, Mr. Tolia has submitted that the order and judgment of the Trial Court deserves to be quashed and set aside and the appeal be allowed accordingly.

19. Mr. R.R. Shah, learned advocate appearing for the respondent - ori. plaintiff, on the other hand, has strongly opposed this Appeal From Order and submitted that the impugned order and judgment passed by the learned City Civil Judge is absolutely in accordance with the statutory provisions and based on settled legal position, which cannot be interfered by this Court while exercising its appellate jurisdiction under Order-43 Rule-1(r) of the Civil Procedure Code. He has further submitted that the respondent is a member of well known Torrent Group of Industries having long standing and pharmaceutical industries in India. The respondent is an inventor, original adopter and proprietor of the trade mark ''DROXYL''. The respondent has effective marketing set-up to promote its products including DROXYL. The respondent has trained and expert field staff comprising of Medical Representatives. All products of the respondent including the product in question have been marketed in all the States in the country and the total sale of DROXYL has exceeded Rs. 6,285 lacs at the time when the suit was filed. He has further submitted that the respondent applied for obtaining drug permission to the Food & Drug Control Administration, Gujarat State, Gandhinagar for its product DROXYL and the said authority has granted such drug license and permission to manufacture and market the product under the brand name DROXYL containing CAFE-DROXIL. The respondent had filed on 10.4.1989 an application for registration of its trade mark DROXYL in Part-A in Clause-5 in respect of pharmaceutical and medicinal preparations under the Trade and Merchandise Act, 1958 and the said trade mark is registered under No. 508348 in Class-5 in respect of Pharmaceutical and Medicinal preparation as of 10.4.1989. In or about June, 1989 the respondent decided to introduce a new medicinal preparation containing the drug CEFA-DROXIL which was invented and decided to adopt the DROXYL trade mark for its product. Thus, the plaintiff''s trade mark DROXYL which was invented and adopted has been in use since year 1989 uninterruptedly, extensively and openly throughout the country. The respondent had acquired favourable reputation and goodwill of the product DROXYL because of its excellent efficacy, high quality standards and sale promotion efforts put in by the respondent. There is an ever increasing demand for its said product DROXYL all over India. In and around June, 2000 the respondent came to learn that the appellant had introduced its product under the identical and/or deceptively similar brand name AROXIL. The respondent, thereafter, immediately, issued cease and desist notice through its advocate Shri R.R.Shah and Company on 24.6.2000. The respondent had given all necessary particulars in the said notice and requested the appellant to stop using the offending trade mark AROXIL. Despite receipt of the said notice the appellant continued to use the said mark AROXIL and hence the respondent was constrained to file the suit before the City Civil Court, Ahmedabad.

20. Mr. Shah further submitted that the appellant''s mark AROXIL is identical and/or deceptively similar and/or confusingly similar to and is colourable imitation of the respondent''s registered trade mark DROXYL. The appellant has passed off and/or further threatened to pass off and/or facilitating others to pass off goods of the respondent as and for the well-known goods of the respondent by using AROXIL trade mark. The use of AROXIL by the appellant is likely to cause confusion and deception in the course of trade. He has, therefore, submitted that it was absolutely necessary that the appellant should be permanently restrained from manufacturing, selling, advertising, offering for sale and/or otherwise dealing any product bearing the trade mark AROXIL deceptively and confusingly similar to the respondent''s trade mark DROXYL so as to enable the appellant to pass off its goods as and for the goods of the respondent. Mr. Shah further submitted that the learned City Civil Judge has considered the entire facts and circumstances of the case as well as documentary evidence on record and granted injunction restraining the appellant from using the said trade mark. Since the impugned order is discretionary order it cannot be said that the said discretion has been used by the learned City Civil Judge without any application of mind or in a arbitrary or capricious manner and hence the said order cannot be interfered with by this Court.

21. Mr. Shah in support of his submission has relied on the following decisions of various High Courts including this Court as well as Apex Court:

In Schering Corporation and Ors. v. Kilitch Co. (Pharma) Pvt. Ltd. 1994 1 PLR 1, the plaintiffs were registered proprietors of the trade mark QUADRI-DERM, a stylised word, for skin ointment sold in tubes and cartons of distinctive features. The defendants began using the trade mark CORI-DERM for sale of their tubes of skin ointment in similar cartons. To avoid confrontation, plaintiffs suggested to the defendants to take certain steps which the defendants refused contending that the trade mark CORIDERM being an invented word there was no deceptive or confusing similarity with the registered mark. The defendants'' further explanation about the meaning and adoption of the invented word was false and unconvincing. Since the defendants remained adamant the plaintiffs filed a suit in the wake of criminal proceedings which resulted in seizure of defendants goods by the police. During the proceedings the defendants gave the sales figures and maintained that since the product was sold through chemists there was no likelihood of public confusion or deception. The defendants contention was that there was delay in moving the Court which disentitled the plaintiffs from claiming interim reliefs. There were also other equivalent trade marks currently in the market against which the plaintiffs did not take any action. The single judge accepted the defence of delay while issuing interim injunction against use of identical containers but refused to issue restraint order against use of infringing trade mark. The plaintiffs appealed to the Division Bench and while allowing the said Appeal the Division Bench held that:

I

(i) The trial Court ought to have given due weight to the plaintiff''s citation of Delhi High Court''s judgment in the matter of Hindustan Pencils against India Stationary Products Co. (AIR 1990 Delhi 19). Mere lapse of time does not amount to laches. In the instant case the plaintiffs have not acted with undue delay. By reason of such lapse of time the defendants have not altered their position nor have any equities come into existence which entitle the defendants to protection.

(ii) Whatever sales were claimed by the defendants after first issue of notice by the plaintiff were of no consequence and were at the peril and risk of the defendants.

(iii) That the defendant''s plea about the plaintiffs'' not taking legal action against equivalent trade marks was not of any relevance in the absence of evidence proving the extent of sales.

22. In Astra-IDL Limited Vs. TTK Pharma Limited, it is held that the question of likelihood of confusion has to be decided by comparison of marks as a whole. The totality of the mark is required to be considered to hold as to whether or not the mark is deceptively similar. In deciding whether the word ''Betalong'' is deceptively similar to the word ''Betaloc'', each of the two words must be taken as a whole word. The words are so similar that there is reasonable probability of confusion between the words both from the visual and phonetic point of view. It is not a matter of microscopic inspection, but to be taken from the general and even casual point of view of a customer walking into a shop. Even if proper attention is paid to the termination of marks, the likelihood of confusion being caused cannot be ruled out. The mark ''Betaloc'' is too near and so similar to the mark ''Betalong'' as to make the confusion likely. Phonetically, visually and structurally both the marks are similar. Actual deception is not necessary to be proved. What is material is likelihood of deception. The Court further held that in the present circumstances, doctor''s prescription factor has lost its importance since the reality of the situation cannot be ignored. In India scheduled drugs which are to be sold under doctor''s prescription are even sold without production of doctors prescription and as such reduces the weightage that can be given to this aspect of the matter while considering the question of deceptive similarity. The marks ''Betaloc'' and ''Betalong'' being visually, phonetically and structurally similar and so close to each other that it outweighs the weightage to be given to the factor that the goods are scheduled drugs. The Court, therefore, held that very strong prima facie case was made out by the plaintiff for permanent injunction restraining the defendant from infringing plaintiff''s trade mark and hence interim injunction cannot be refused on ground of delay in filing suit.

23. In American Home Products Corporation Wyeth Lab Ltd. v. Lupin Lab Ltd. reported in 1996 PTC (16), it is held that in a passing off action, the Courts look to see whether there is misrepresentation whereas in infringement matters, it is important to note that the Trade marks Act gives to the proprietor, an exclusive right to the use of the mark which will be infringed in the case of identical marks and, in the case of similar marks, even though there is no misrepresentation, infringement can still take place. The law relating to infringement of trade marks is based on certain fundamental ideas which may be common to the law relating to passing off but, it differs in two particular aspects, namely, the use of trade mark is one of the methods of passing-off and secondly, the statutory protection in the case of a registered trade mark is absolute in the sense that once a mark is shown to offend, the user of it cannot be escaped by showing something outside the actual mark itself. Therefore, infringement takes place, not merely by exact imitation, but by the use of the mark nearly resembling the registered mark as to be likely deceptive. The Court further held that there is resemblance between ROLAC and TOROLAC. The said resemblance is structural as well as visual and phonetic. The sound of one word resembles the sound of another, first impression. A person who only knows ROLAC and who has an imperfect recollection will be deceived and confused if the chemist asked him for TOROLAC and vice-versa. In the circumstances, the Court found merit in the contentions advanced on behalf of the plaintiffs with regard to deceptive similarity between the two medical preparations which may lead to disastrous consequences. The Court further held that weightage required to be given to the doctor''s prescription, the legibility of the handwriting of the doctors writing the prescription, the likelihood of the possibility of wrong reading of the said prescription by a letter here or there which may lead to serious consequences. All these aspects have been taken into account by the Court because each case depends on the peculiar facts of the case and no strait jacket formula can be laid down to decide such matters.

24. In Amritdhara Pharmacy Vs. Satyadeo Gupta, , it is held that What degree of resemblance is necessary to deceive or cause confusion must in the nature of things be incapable of definition a priori. For deceptive resemblance two important questions are: (1) who are the persons whom the resemblance must be likely to deceive or confuse'' and (2) what rules of comparison are to be adopted in judging whether such resemblance exists. As to confusion, it is perhaps an appropriate description of the state of mind of a customer who, on seeing a mark thinks that it differs from the mark on goods which he has previously bought, but is doubtful whether that impression is not due to imperfect recollection. The Court further held that question had to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man the overall structural and phonetic similarity of the two names "Amritdhara" and ''Lakshamandhara'' was likely to deceive or cause confusion. The overall similarity of the two composite words ''Amritdhara'', and ''Lakshamandhara'' had to be considered. It could not be said that no Indian would mistake one for the other. An unwary purchaser of average intelligence and imperfect recollection would not split the name into its component parts and consider the etymological meaning thereof or even consider the meaning of the composite words as current of nectar'' or ''current of Lakshman.'' Where the trade relates to goods largely sold to illiterate or badly educated persons, it is no answer to say that a person educated in the Hindi language would go by the etymological or ideological meaning and see the difference between ''current of nectar'' and ''current of Lakshman''. The use of the word ''dhara'' was not by itself decisive of the matter, what had to be considered here was the overall similarity of the composite words, having regard to the circumstance that the goods bearing the two names were medical preparations of the same description, though a critical comparison of the two names might disclose some points of difference. The trade mark is the whole thing-the whole word has to be considered. On a consideration of all the circumstances the over-all similarity between the two names in respect of the same description of goods was likely to cause deception or confusion within the meaning of Section 10(1) of the Act.

25. In Parle Products (P) Ltd. Vs. J.P. and Co., Mysore, it is held that to decide the question as to whether the plaintiffs'' right to a trade mark has been infringed in a particular case, the approach must not be that in an action for passing off goods of the defendant as and for those of the plaintiff. In order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a persons usually dealing with one to accept the other if offered to him. It is of no use to note on how many points there is similarity and in how many others there is absence of it.

26. In Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., it is held that where medicinal products are involved, the test to be applied for adjudging the violation of trade mark law may not be at par with cases involving non-medicinal products. A stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer. While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effect on health and in some cases life itself. Stringent measures should be adopted specially where medicines are the medicines of last resort, as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the medicinal product itself could have dire effects on the public health. Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Noting the frailty of human nature and the pressures placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. The Court further held that although the possibility of confusion in a drug being sold across the counter may be higher, the fact that a drug is sold under prescription or only to physicians cannot by itself be considered a sufficient protection against confusion. The physicians and pharmacists are trained people yet they are not infallible and in medicines, there can be no provisions for mistake since even a possibility of mistake may prove to be fatal. In view of the varying infrastructure for supervision of physicians and pharmacists of medical profession in our country due to linguistic, urban, semi-urban and rural divide across the country and with high degree of possibility of even accidental negligence, strict measures to prevent any confusion arising from similarity of marks among medicines are required to be taken.

27. In Glaxo SmithKline Pharmaceuticals Ltd. and Another Vs. Naval Kishore Goyal and Others, it is held that even assuming that the plaintiff were aware of the use of Mark FENTEL since the year 2000, this does not detract or dilute from its rights to pray for an injunction. It is further held that although it is true that there is a difference in the first consonant of the names, it is too much to expect the public in India to keep this distinction in mind and be able to distinguish between the two drugs. The Court considers the greater stress on the likelihood of deception into purchasing the defendant''s goods believing them to be that of the plaintiff''s, as the preeminent test. The Court further held that inasmuch as registration of the trade mark is prima facie evidence of its validity and the appellant has not challenged the validity of the registration of the respondent''s trade mark.

28. In Medley Pharmaceuticals Ltd., v. Winsome Laboratories Ltd. and Anr. reported in 2009(5) AIR Bom. R.145, plaintiff company adopted a distinctive trade mark ''Nimsaid'' for a medical preparation containing the drug ''Nimesulide''. The defendants were manufacturing and selling same medical preparation under a deceptive similar trademark ''Nimaid'' and ''Nimaid-P''. The plaintiff''s and defendant''s names of product were resembling. Drug used in both preparations was identical. Plaintiff''s products were available all over India including States where defendant''s products were available. Plaintiff''s volume of manufacturing and sale of product was much larger than defendants. Though packaging, colour scheme on cartoons of two products were not similar, in pharmaceuticals products name of drug matters more. Merely because same drug was used in both products it would not justify applying a lower standard of scrutiny. The Court held that the plaintiff was entitled to injunction. The Court has also considered the plea of the defendant that several products of several manufacturers using same prefix are in market hence plaintiff could not have targeted defendant alone. While rejecting the said plea the Court held that it is for the plaintiffs to decide as to against whom they should take action of infringement. Infringer cannot question the choice made by the proprietor of the registered trade mark to sue.

29. In Midas Hygiene Industries P. Ltd. and Another Vs. Sudhir Bhatia and Others, it is held that the law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in brining action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima faice appears that the adoption of the mark was itself dishonest.

30. In Rupa & Co. Ltd., and Anr. v. Dawn Mills Co. Ltd. and Anr. reported in AIR 1998 Guj 247, this Court held that delay by itself cannot be ground for refusing to exercise discretion of the trial Court in the matter of granting temporary injunction. It is just one of consideration in the total gamut of consideration and unless there is justification for accusing the plaintiff of culpable delay amounting to acquiescence or abandonment of right, it cannot disentitle him to relief of injunction. If in totality of circumstances, the trial Court has exercised its discretion by reaching conclusions which are reasonably possible, the appellate Court will not interfere with such exercise of discretion. The Court further held that the essential feature of a trade mark is one by which an average person with imperfect recollection remembers it rather by general impression or by some significant detail than by any photogenic recollection of the while in visual details. Test of such enquiry being in the state of mind of an average buyer of the goods, it is equally important to consider the class of person who are likely to buy the goods bearing the mark, back ground from which they come, level of their education and degree of care they are likely to exercise in purchasing goods. That degree of resemblance is necessary and in which field, visual or sound, is from the very nature of things a matter incapable of a definition a priori. Each case must depend on its own facts and on the satisfaction of Court on totality of evidence where words group of words are considered essential feature of the mark, than instead of its visual detail, resemblance in sound or phonetic similarity will be of prime relevance.

31. In Pam Pharmaceuticals v. Richardson Vicks Inc. and Ors. reported in 2001 42 GLR 125, it is held that when the Court is concerned with any medicinal product, the Court has to be more cautious for the reason that an average person with average intelligence and imperfect recollection should not be misguided and should not, due to some mistake or due to inadvertence purchase another product. The Court further held that a question whether two marks are deceptively similar has to be examined from the perspective of person of average intelligence and imperfect recollection. The defendant selling cough drops under the name VICAS in packet deceptively similar to those of plaintiff, holders of registered trade mark VICKS. The Court held that injunction granted by trial Court is required to be confirmed.

32. In Duncans Agro Industries Ltd., v. Somabhai tea Processors P. Ltd. reported in 1995 36 GLR 380, this Court held that a trader who first goes to the market with his product under a particular trade mark or trade name as a distinctive mark, gets the proprietory right to use that mark, to the exclusion of others, irrespective of the length of user or extent of his business. Even if the plaintiff''s user was only few months prior to that of the defendant, the plaintiff would be entitled to an injunction restraining the defendant from using that mark or a similar mark.

33. Mr. Shah further submitted that the learned City Civil Judge has granted interim injunction after exercising her judicial discretion in accordance with law and the same should not be disturbed by this Court. In support of this submission, he relied on the following decisions:

In Wander Ltd. and Another Vs. Antox India P. Ltd., it is held that the appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court''s exercise of discretion.

In Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, it is held that this Court in exercise of jurisdiction under Article-136 would not ordinarily interfere with the exercise of discretion in the matter of grant of temporary injunction by the High Court and the trial Court and substitute its own discretion therefore, except where the discretion has been shown to have been exercised arbitrarily, capriciously or perversely or where the order of the Court under scrutiny ignores settled principles of law.

In Neon Laboratories Ltd. v. Medical Technologies Ltd., (Appeal From Order No. 361 of 2005) decided on 19.12.2005, this Court held that the trial Court has exercised discretion reasonably and in judicious manner and since the Court was in total agreement of the same, it was not possible for the Court to take a different view.

34. Based on the above submissions and case-law relied upon by the respondent - plaintiff, Mr. Shah submitted that impugned order and judgment of the learned City Civil Judge does not call for any interference by this Court and Appeal From Order deserves to be dismissed.

35. Having heard learned Counsels appearing for the parties and having gone through the impugned judgment and order passed by the learned City Civil Judge, Ahmedabad in interim application granting injunction in favour of the Respondent - Plaintiff and having considered the rival submissions of the parties in light of the statutory provisions contained in the Trade Marks Act as well as the decided case law on the subject, the Court is of the view that the learned City Civil Judge has committed a grave error of law and facts in granting interim injunction in favour of the Respondent - Plaintiff and the said order and judgment deserves to be interfered with while exercising an appellate jurisdiction of this Court under order 43 Rule 1(r) of the Civil Procedure Code.

36. There is no dispute about the fact that the Appellant has been using the trade mark ''AROXIL'' since 1996. There is also no dispute about the fact that the Respondent - Plaintiff has filed Regular Civil Suit No. 4703 of 2000 in the year 2000 and no interim relief was granted by the trial Court at the initial stage. The injunction application was decided by the trial Court on 30.11.2006 and for the first time the interim injunction was granted whereby the Appellant - Original Defendant was restrained from infringing the Respondent - Plaintiff''s registered trade mark ''DROXYL'' and from using its impugned mark ''AROXIL'' in respect of the pharmaceutical and medicinal preparation, as prayed for. It is also relevant to note that this order of the trial Court was suspended by the trial Court itself so as to enable the Appellant to approach this Court, and after filing this Appeal from Order, this Court has suspended the said order and it still remains under suspension as on today. The net result of this is that the Appellant has been using this trade mark ''AROXIL'' for the last more than 13 years. It is therefore incumbent upon the Court to consider this aspect as to whether after 13 years the injunction order should or should not be granted in favour of the Respondent Plaintiff.

37. Before considering the merits of the matter even on prima facie basis, it is necessary to have a close look at certain statutory provisions of the Trade Marks Act, 1999. Section 9 deals with absolute grounds for refusal of registration and Section 9(1)(a) says that the Trade Marks which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person shall not be registered. However, Section 9(1)(b) says that the trade marks which consist exclusive of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service shall not be registered. Here in the present case, the trade mark of the Respondent Plaintiff ''DROXYL'' is derived from pharmaceutical preparation ''CEFADROXIL'' and thus designates the kind of the goods and devoid of distinctive character. It is true that the Respondent Plaintiff''s trade mark ''DROXYL'' has been registered by the Registrar of Trade Mark under the Registration No. 508348 in respect of pharmaceutical and Medicinal Preparation as of 10.4.1989. It is also true that the Appellant has not moved any application for cancellation of the registration of the Respondent Plaintiff''s trademark u/s 50 of the Trade Marks Act or even if such application were filed, no order has been obtained till this date. This fact, by itself, however does not prevent the Appellant from contending that the registration has been wrongly granted while opposing the Respondent Plaintiff''s application for interim injunction. Section 13 of the Act deals with prohibition of registration of names of chemical elements or international non-proprietary names. Section 13(a) says that No work which is the commonly used and accepted name of any single chemical element or any single chemical compound (as distinguished from a mixture) in respect of a chemical substance or preparation, shall be registered as a trade mark. The Appellant''s contention is that the trade mark ''DROXYL'' is nothing but the name of a chemical element, which is commonly used and accepted in respect of chemical substance or preparation namely ''CEFADROXIL''. It is true that Section 29 deals with infringement of registered trade marks. However, Section 30 puts limits on effect of registered trade mark and it starts with the opening words that nothing in Section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use is in accordance with honest practices in industrial or commercial matters, and is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark. Sub-section (2) of Section 30 specifically states that a registered trade mark is not infringed where the use in relation to goods or services indicates the kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or of rendering or services or other characteristics of goods or services. If the Appellant''s contentions were accepted that the use of the word ''AROXIL'' by the Appellant is in relation to goods and it merely indicates the kind and quality of the medical preparation namely ''CEFADROXIL'', in that case there would not be any infringement.

38. The Court also finds substance in the submission of Mr. Tolia that the word ''ROXIL'' is coined and invented by the Appellant by taking letter ''A'' as the first letter of its own name, i.e. ACME Pharmaceuticals and ''ROXIL'' as last five letters of drug ''CEFADROXIL''. No one including the Respondent Plaintiff can claim monopoly in respect of a word which is descriptive of particular drug used in medicinal production. The trade mark of the Respondent Plaintiff is nothing else but the copy of last letters of a drug known as ''CEFADROXIL''. In the mark either ''CEFA'' or ''DROXIL'' or ''CEFADROXIL'' is a descriptive word mark and there are many other manufacturers using the same words. The Appellant has quoted such instances in its appeal memo. Lyka Labs Limited is using the trade mark ''LYDROXIL'', and ''ETHYLEX'' is using the trade mark ''EDROXYL''. Comet Chemicals Private Limited is also using the trade mark ''CODROXIL''. Lupin Laboratories Limited is using the trade mark ''ODOXIL'' and Devine Health Care is using the trade mark ''DROX KID''. Despite these medicines are available in the market, it appears that no objection was ever raised by the Respondent Plaintiff against those manufacturers. The Court is therefore of the prima facie view that the trade mark of the Respondent Plaintiff is nothing else but an adoption of last letters i.e. ''DROXYL'' from drug known as ''CEFADROXIL'' and in the pharmaceutical industries, this drug is known as generic drug, i.e. referring to the chemical / drug formulation itself. Thus, the injunction granted in favour of the Respondent Plaintiff by accepting its claim of monopoly in respect of the words ''DROXYL'' is hardly sustainable.

39. Various decisions are cited by both the parties in support of their respective submissions. Decisions are found on either side. The Courts have however decided all these cases depending upon the facts, which they found and applying the well settled principles of law, equity and justice.

40. In M/s Aristo Pharmaceuticals Limited (supra), the dispute is between the two trade names namely ''SPASMO PROXYVON'' and ''SPASMO SLAXON''. Though the Plaintiff''s trade mark ''SPASMO PROXYVON'' was registered, it could not succeed in getting the interim injunction since the registered trade mark was descriptive in nature.

41. Similarly, in J.R. Kapoor v. Micronix India (supra), though ''Micronix'' was registered, since it was descriptive in nature, no injunction was granted.

42. In SBL Limited v. Himalaya Drug Company (supra), the dispute was in respect of Liv 52 and Liv-T. The Court found that there was no similarity or the words are not deceptive. ''Liv'' is descriptive of ''Liver'', an organ of the human body and it has thus become a generic terms and publici juris. No trader can restrain another trader from using the description of the organ, ingredient or ailment.

43. Similarly, in the case of Apex Laboratories Limited, the dispute is between the two trade marks ''Zincovit'' and ''Zinconia'' and the Court took the view that both the medicine preparations contain zinc, and therefore, the words ''Zinc'' is common to the trade and is publici juris.

44. In Indo Pharmaceutical Works Limited (supra), the dispute is between the two trade marks namely ''Enerjex'' and ''Enerjase''. Prefix for both the marks namely ''Enerj'' is common and abbreviation of generic name ''energy'', the Court therefore took the view that both the words are different and that there was no infringement of the trade mark of the Plaintiff.

45. If one applies the ratio of all these decisions and many other cited at the bar in support of Appellant''s case, it prima facie appears to the Court that the Respondent Plaintiff''s trade mark ''DROXYL'' is descriptive word of the drug ''CEFADROXIL'' itself. The Appellant has also coined this word by taking letter ''A'' as the first letter of its own name and ''DROXYL'' as the last letters of drug ''CEFADROXIL''. Thus, it cannot be said that the Appellant has infringed the trade mark of the Respondent Plaintiff.

46. The Respondent - Plaintiff has also quoted certain judgments in its favour.

47. In Astra IDL Limited (supra), the dispute was between the two trade marks namely ''BETALONG'' and ''BETALOC''. The first six letters are common in both these trade marks. The Court took the view that the mark ''BETALOC'' is too near and so similar to the mark ''BETALONG'' as to make the confusion likely. The Court compared these two marks phonically, visually and structurally and held that they are deceptively similar.

48. Likewise, in American Home Products Corporation - Wyeth Lab Limited (supra), the dispute is between the two marks namely ''ROLAC'' and ''TOROLAL''. The Court found the structural, visual and phonic resemblance in both these marks. The Court however held that several other aspects have been taken into account by the Court because each case depends on the peculiar facts of the case and no straight jacket formula can be laid down to decide such matters.

49. It is worthwhile to note here that in Cadila Health Care Limited (supra), the Appellant and the Respondents are pharmaceutical companies. They have taken over the assets and business of the erstwhile Cadila Group after its restructuring u/s 391 and 394 of the Companies Act. Under the restructuring scheme, both the Appellant and the Respondent got the right to use the name ''Cadila'' as a corporate name. The Appellant manufactured a drug ''Falcigo'' containing ''Artesunate'' for the treatment of Cerebral malaria commonly known as Falcipharum. On 7.10.1996, the Drugs Controller General (India) granted permission to the Appellant to market the said drug under the trade name of ''Falcigo''. On 10.4.1997 the Respondent got permission from the Drug Controller General (India) to manufacture a drug containing ''Mafloquine Hydrochloride''. This drug was also used for the treatment of Falcipharum malaria ad was being sold by the Respondent under the trade name of ''Falcitab''. The Appellant filed a civil suit for injunction against the Respondent from using the trade mark ''Falcitab'' on the ground that the same would be passed off as the Appellant''s drug ''Falcigo'' for the treatment of the same disease in view of confusing similarity and deception in the names and more so because the drugs were medicines of last resort. The Respondent contended inter alia that the two drugs in question were Schedule ''C'' drugs, which can be sold only to hospitals and clinics with the result there could not even be a remote chance of confusion and deception. The trial Court refused to grant interim injunction. The High Court upheld that order and the Supreme Court also refused to interfere with the impugned orders but gave directions for expeditious disposal of the suit. In the instant judgment, the Supreme Court gave the reasons for non-interference with the impugned orders and while setting out the principles, which are to be kept in kind while dealing with an action for infringement or passing off, especially in the cases relating to medicinal products. Despite there being similarity between the two trade marks ''Falcigo'' and ''Falcitab'', the injunction was not granted by the Apex Court.

50. The above discussion leads the Court to decide as to whether the Respondent Plaintiff in fact deserves an interim injunction in the matter. Apart from merits of the matter, to arrive at a prima facie satisfaction, the other two ingredients are equally important. Balance of convenience and in absence of interim injunction whether irreparable loss or injury will be caused to the Plaintiff or not. Taking over all view of the matter, the Court is of the view that the Appellant succeeded in pursuading this Court to take the view that the trial Court has wrongly and in violation of statutory provision and judicial precedents, granted injunction in favour of the Respondent Plaintiff. Mere prima facie satisfaction is not enough and that too cannot be arrived at merely on the ground that the Respondent Plaintiff''s trade mark ''DROXYL'' is a registered mark or that it has been using the said trade mark since 1989 onwards. The other relevant aspects are also to be kept in mind, such as, same or the similar trade marks have been used by the other manufactures, no objection was ever raised by the Respondent Plaintiff, the trade mark appears to have been based on a generic drug, namely, ''CEFADROXIL''. Over and above this, balance of convenience can certainly tilts in favour of the Appellant as the trade mark ''AROXIL'' is being used by the Appellant since 1996. The Respondent Plaintiff has not raised any objection for about four years and suit was filed only in 2000. During the pendency of the suit between 2000 to 2006, there was no stay and only when the injunction was decided on 30.11.2006 the injunction was granted by the trial Court, which again remains in suspension till this date by virtue of the Courts'' orders. If, at this stage, the impugned order of the trial Court is confirmed and interim injunction is granted, an irreparable loss or injury would be caused to the Appellants. The Court, therefore, while allowing this Appeal from Order, directs the trial Court to decide and dispose of the suit as expeditiously as possible, preferably within six months from the date of receipt of writ or from the date of service of the certified copy of the order, whichever is earlier.

51. It is made clear that all these observations made by the Court in this judgment are of prima facie nature and the trial Court would not be influenced by the said observations and decides the suit on the basis of its own merits and the evidence, oral as well as documentary, that may be led before it. Though the injunction is vacated, the Court directs the Appellant to maintain separately the records of sale of its drug ''AROXIL'' and keep separate accounts thereof and place the relevant details before the trial Court periodically till the suit is finally disposed of.

52. This Appeal from Order is accordingly allowed without any order as to costs.

53. Since the Appeal from Order is allowed, Civil Application no longer survives and is accordingly disposed of.