J.M. Malik, J.

1. The trial court vide order dated 19th December, 2006, accepted the application moved by the plaintiff/respondent under Order 39 Rules 1 and 2 CPC and restrained the defendant/appellant from using the name "Ayur" as part of its trade name and further restrained the defendant/appellant from selling its product under the name which may consist of Ayur such as "Ayurherbs Pharmaceuticals Private Limited" till the pendency of the suit. Adumbrated, in brief, the facts of the plaintiffs/respondents case are these The respondent is transacting the business of production of cosmetic products including cream, lotion, shampoo, hair care material, etc. in the name of "Ayur". The above-said goods are sold under the trademark of "Ayur" right from 1984.

2. The grouse of the respondent is that the appellant has got itself registered in the name of "Ayurherbs Pharmaceuticals Private Limited". The above-said name is identical and deceptive to its trademark "Ayur". The respondent had served a legal notice upon the appellant to restrain the appellant from using the trademark "Ayur" but it did not ring the bell. Ultimately, the instant suit was filed.

3. The appellant has enumerated the following defences in its defence. It is pointed out that there is no similarity between the trademarks of the appellant and the respondent. It was further submitted that the appellant has been producing various medical preparations which have distinct and separate names like Addvig Tablets and Syrup, Adzyme. Syrup, Tablets Coflow Syrup, Cytomyn Syrup Drops Tabites, Femiwin Syrup, Lithas Syrup, Encure Oil, Thrill Capsules, etc. According to the appellant, the word "Ayur" is derived from Ayurveda and in none of its product it has used the word "Ayur". It further submitted that the appellant had given three names to Registrar of Companies for Delhi and the Registrar himself approved the name "M/s Ayurherbs Pharmaceuticals Private Limited". Lastly, the products of the appellant are different from the products of the respondents.

4. Before the lower court the plaintiff/respondent had relied upon the authorities reported in Pizza Hut International LLC and Others v. Pizza Hut India Private Limited, 2003(26) PTC 208 (Bombay), Three-N Products Private Limited v. Yashwant and Others, 2002(24) PTC 518: 2002(2) R.A.J. 163 (Delhi), wherein it was held, that the plaintiff can claim exclusive right such word as its trademark to the exclusion of all other even though goods marketed by other parties might be totally different, Ellora Industries Delhi v. Banarsi Dass Goela, A.I.R. 1980 Delhi 254 and K.G. Khosla Compressors Ltd. v. M/s Khosla Extradictions Ltd. and others, A.I.R. 1986 Delhi 181.

5. I have heard counsel for the appellant at the admission stage. He pointed out that there is a marked difference between the two trademarks. He vehemently argued that the goods manufactured by the appellant are not similar to those manufactured by the respondent.

6. I see no force in this argument. The user of the name "Ayur" by the appellant as trade name amounts to passing off under the provisions of the Trade Marks Act. The above-said suffix, namely, "Ayur Herbs Pharmaceuticals Private Limited" is likely to cause confusion in the mind of the ordinary purchaser. The above-said view is fortified by the following authorities.

7. In Ruston& Hornby Ltd. v. Z. Engineering Co., AIR 1970 SC 1649 [LQ/SC/1969/330] , it was laid down:

"We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondent by a permanent injunction from infringing the plaintiffs trade mark "RUSTON" and from using it in connection with the engines, machinery and accessories manufactured and sold by it under the trade mark of "RUSTAM" or "RUSTAM INDIA". The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of "RUSTAM" or "RUSTAM INDIA". The appellant is also granted a decree for nominal damages to the extent of Rs. 100. The appellant is further entitled to an order calling upon the respondent to deliver to the appellant price lists, bills, invoices and other advertising material bearing the mark "RUSTAM" or "RUSTAM INDIA". The appeal is allowed with costs to the above extent. "

8. In Corn Products Refining Co. v. Shangrila Food Products Ltd., AIR 1960 SC 142 [LQ/SC/1959/182] , it was held that Trade Mark "Gluvita" used with respect to biscuits and Trade Mark "Glucovita" used with respect to glucose were likely to cause confusion. Similar view was taken in Parle Products v. J.P. & Co. Mysore, AIR 1972 SC 1359 [LQ/SC/1972/67] , wherein it was held that "Gluco Biscuits" & "Glucose Biscuits" are deceptively similar & create confusion.

9. In M/s. Anglo Dutch PC v. Works Pvt. Ltd., AIR 1977 Delhi 41, this Court had observed that "the Supreme Court in Corn Products Refining Co. (supra) and Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449 [LQ/SC/1962/200] , has laid down the test for comparing the two marks as under :

(i) The question whether the two marks are so similar as likely to cause confusion or deceive is one of the first impression. It is for the Court to decide this question.

(ii) The question has to be approached by applying the doctrine of fading memory, i.e. from the point of view of a man of average intelligence having imperfect recollection.

(iii) Whether the overall visual and phonetic similarity of the two marks is likely to deceive such a man or cause confusion that he may make mistake the goods of the defendant for those of the plaintiff.

(iv) The other questions which are:

(a) Who are the persons who are likely to be deceived, and

(b) What rules of comparison are to be adopted in judging whether such resemblance exists."

10. In Midas Hygiene Industries P. Ltd. v. Sudhir Bhatia, 2004(28) PTC 121: 2004(1) R.A.J. 586 (SC) it was held:

"5. 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 bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest."

11. In Kedar Nath v. Monga Perfumery & Flour Mills, AIR 1974 Delhi 12, the facts were that defendants impugned carton was closely similar or identical (except the prefix "vijay" in small type) with the registered trademark of the plaintiffs Sudharshan Dhoop. It was held that the impugned trademark clearly infringed plaintiffs registered trade mark and that the prefix "vijay" was not likely to catch the eye of an ordinary purchaser who would easily be deceived into thinking that he was buying plaintiffs product.

12. In M/s Avis International Ltd. v. M/s Avi Footwear Industries & Anr., AIR 1991 Delhi 22, the plaintiff used the trade mark `Avis for readymade garments. The defendant used the trade mark `AEVIS for its footwear. Injunction was granted to the plaintiff.

13. In Gold Star Co. Ltd. v. M/s Gold Star Industries & Ors., 1995 PTR 78, both the companies had trade mark Gold star, it was held that mere pendency of the rectification proceedings would not disentitle the plaintiff from relief sought, particularly when plaintiff is proprietor of registered trade mark in respect of washing machines. Filing of the rectification proceedings is not a valid defence for infringement of the trade mark. Therefore, the denial of injunction once the infringement of the trade mark is established would amount to putting a premium on the illegal action of the defendant.

14. In Sir Shadi Lal Enterprises Ltd. v. Kesar Enterprises Ltd., 1998(1) Arb. LR 323: 1998(1) R.A.J. 272, this Court observed that :

"The defendants objection in resistance to the plaintiffs case, that the plaintiff is by itself a pirator in that trade mark "Chetak" belongs to a Kashmir Party and consequently the plaintiff is not entitled to the relief sought, in my view, is stated to be rejected. Except for a bald statement that the said trade mark belongs to a Kashmir party, the defendant has not brought on record any material to show that the said party has ever used this trade mark. In such a situation it would be a matter between the plaintiff and the stated Kashmir party. Only that party can object to its user by the plaintiff on the ground that it was a prior user of the mark. It is not for the defendant to rake up the issue on his behalf and claim protection on that score."

15. The Supreme Court in Parle Products (P) Ltd v. J.P. and Co. Mysore, (supra) has laid down the test to determine the question when a trade mark is deceptively similar to another. It was observed:

"It would be enough it the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with on to accept the other it offered to him."

A little later, it was observed:

"After all an ordinary purchaser is not gifted with the powers of a Sherlock Holmes."

16. In the light of the discussion above, I find no force in the appeal. FAO No. 120/2007 is, therefore, dismissed in limine. It is however made clear that any observation touching the merits of this case is tentative only for the purpose of this appeal and shall not be construed as an expression of final opinion in the matter. CM No.4453/2007 also stands dismissed. FAO & CM dismissed.