Prabha Sridevan, J.

1. Apex Laboratories Limited, the appellant herein, are the manufacturers of pharmaceutical products and have adopted the Trade Mark "Zincovit" on 16.3.1988 for their product viz., syrup and tablets and have also applied for its registration as a proposed mark and obtained registration of the Trade Mark, which has been renewed and is in force. It is claimed that they have filed a number of suits against infringement of their Trade Mark "Zincovit" and have also obtained injunction orders. Sometime during February, 2006, it came to the knowledge of the appellants that the respondents are manufacturing and selling pharmaceutical products under the Trade Mark "Zinconia". The appellants claim is that the respondents are guilty of infringement of the Trade Mark and also of passing off. Therefore, they filed C.S. No. 216 of 2006 and applied for injunction in O.A. Nos. 244 and 245 of 2006.

2. The respondents resisted the application claiming that there are several registered owners of Trade Mark containing the word "Zinco" and the appellant is not the exclusive proprietor of the word "Zinco". It is also claimed that the marks are visually and phonetically dissimilar and there are no oral, visual or conceptional similarities and the essential features in both the marks i.e., colour combination, scheme of writing, are entirely different. Interim injunction granted exparte was vacated by the learned single Judge holding that there is no likelihood of causing confusion in the mind of the purchaser and there is no similarity and deceptiveness in the names "Zincovit" and "Zinconia" and further that Zinc is the common name in trade. Against this order, the appeal has been filed.

3. The learned counsel for the appellant re-lied on several decisions to support the case for injunction. The learned counsel for the respondent produced the card-board cartons to show the dissimilarities and stated that there was no way the consumer could be deceived into thinking that the respondents product is actually the appellants product.

4. Several decisions were relied on by the learned counsel:

(i) In Ciba Geigy Limited & Hindustan Ciba-Geigy Ltd. v. Croslands Research Laboratories Ltd. 1995 IPLR 375 the Division Bench of this Court held that EUGEL was strikingly similar to EMULGEL, and the products were sold identically in hand designed cartons and tubes and therefore, injunction must necessarily be granted.

(ii) In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. AIR 2001 SC 1952 [LQ/SC/2001/847] : (2001) 5 SCC 73 [LQ/SC/2001/847] , the Supreme Court 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 it-self 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 pharmaceuticals 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."

And for deciding the question of deceptive similarity, the following factors must be considered-

"(a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label marks;

(b) The degree of resembleness (sic) between the marks, phonetically similar and hence similar in idea;

(c) The nature of the goods in respect of which they are used as Trade Marks;

(d) The similarity in the nature, character and performance of the goods of the rival traders;

(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods;

(f) The mode of purchasing the goods or placing orders for the goods; and

(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

Weightage to be given to each of the afore-said factors depends upon facts of each case and the same weightage cannot be given to each factor in every case."

(iii) In Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142 [LQ/SC/1959/182] it was held:

"The question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide that question. English cases proceeding on the English way of propounding an English word by English men, which is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole."

(iv) In J.R. Kapoor v. Micronix India (1994) Supp 3 SCC 215 the two Trade Marks in question were MICRONIX and MICROTEL. The Supreme Court held that those who are familiar with the use of electronic goods are not likely to be misguided or confused merely by the MICRO in the trade name, since `MICRO is the descriptive of the micro technology used for production of many electronic goods which daily come to the market and no one can claim monopoly over the use of the said word. The Supreme Court held that the two names are not only phonetically different, even their visual impression of them are different. Therefore, it was held that there was not even the remotest chance of the buyers and users being misguided or confused.

(v) In SBL Ltd. v. Himalaya Drug company 1997 PTC (17) (DB), the marks were Liv.52 and The Division Bench of the Delhi High Court held that the word Liv is a generic term and publici juris and no one can claim an exclusive right and that as regards the two rival marks 52 and T which contain a common feature LIV the customer will not consider the common feature and pay more attention to the descriptive features.

(vi) Similarly, in Roche & Co. v. G. Manners & Co. AIR 1970 SC 2062 [LQ/SC/1969/320] where the question was whether DROPOVIT and PROTOVIT were deceptively similar, the Supreme Court held that VIT is a well known abbreviation used in pharmaceutical trade to denote vitamin preparation and it was both descriptive and common to the trade and if attention is paid to the uncommon element in the two words, there is no scope for mistake or confusion.

5. In the case on hand, 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. Further, it would be dangerous to split the word into two and grant injunction merely because both the trade names contain the word Zinc. In William Bailey (Birmingham) Ltds 1935 (52) RPC 136) FARWELL, J., said:

"I do not think it is right to take a part of the word and compare it with a part of the other word; one word must be considered as a whole and compared with the other word as a whole. I think it is a dangerous method to adopt to divide the word up and seek to distinguish a portion of it from a portion of the other word."

It is no doubt, true, when prescriptions are telephonic or handwriting, the chances of confusion or mistake cannot be ruled out if the marks appear too much alike when handwritten or sound too much alike when pronounced.

6. But as regards Zincovit and Zinconia, the two words are phonetically dissimilar and the visual impression of the said names are also different and hence, are hardly likely to cause confusion in the mind of a common consumer.

7. The learned Judge was right in vacating the order of interim injunction and we are not interfering with the same. The appeal is therefore, dismissed. No order as to costs. The connected miscellaneous petitions are also dismissed.

Appeal dismissed.