C. GOEL, (ORAL), J.

(1) THE plaintiff, E. R. Squibb and Sons Inc. filed this suit against the defendant, Curewel (India) Ltd. for a permanent injunction against the defendant restraining it from selling in any manner its product under the brand name Curechlor or any other deceptively mark similar to the registered trade mark of the plaintiff peclor with respect to the pharmaceutical preparation known as Chloramphenicol. Alongwith the suit the plaintiff filed this application under Order 39 Rules I and 2 and Section 151 of the Code of Civil Procedure with the same prayer for temporary injunction till the decision of the suit.

(2) THE case of the plaintiff is that the plaintiff has been selling the said product under the trade mark reclor in India from the year 1971 to March 1, 1977 through the instrumentality of its registered users, Karamchand Prernchand Pvt. Ltd. and Sarabhai Chemicals Ltd. and that from March 1. 1977 onwards till now the said product is being sold by its proposed registered users, Elscope Pvt. Ltd. It is alleged that the trade mark Reclor with respect to the said substance was registered in favour of the plaintiff in India on May 4, 1966. This was registered with respect to medicinal and pharmaceutical preparations. The further allegations of the plaintiff are that in October 1984, the plaintiff came to know that the defendant had also been selling the medicine containing Chloramphenicol under the trade name Curechlor in capsules. According to the plaintiff the defendant has appropriated the trade mark of the plaintiff and has added the letters cu in the beginning and has added the letter h after c of the trade mark reclor of the plaintiff and that the trade mark curechlor as adopted by the defendant is deceptively similar, visually and phonetically, with its trade mark reclor. The plaintiff in paragraph 8 of the application made a specific averment that the defendants preparations curechlor is likely to be supplied mistakenly by the druggists and chemists when reclor is prescribed. It was further stated that it was quite possible that even a trained nurse might be misled into giving to a patient curechlor in place of reclor.

(3) THE question for consideration is as to whether the adoption of the trade mark curechlor by the defendant for its product containing the basic drug chloramphenicol amounts to inparations. The further allegations of the plaintiff are that in reme Court in the case of F. Hoffimann-La Roche and Co. Ltd. v. Geoffrey Manners and Co. Private Ltd. , AIR 1970 S. C. 2062 (1) considered the question as to whether the word dropovit was deceptively similar to the word protovit, both of them being vitamin preparations. In this case F. Hoffimann-La Roche and Co. Ltd. had applied for rectification of the registration granted in favour of Geoffrey Manners and Co. Private Ltd. of the trade mark dropovit in respsct of medicinal and pharmaceutical preparations and substances The Supreme Court held that the question of deceptive similarity must be decided on the basis of class of goods to which the two trade marks applied. It was observed that from the nature of the goods it was likely that most of the customers would obtain a prescription from a doctor and show the same to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the chance of confusion was remote. The Supreme Court also on a comparison of the competing trade marks came to the conclusion that the trade mark dropovit was not deceptively similar to the trade mark Protovit Mr. L. C. Goyle, learned counsel for the defendant, also cited a few English judgments relating to the cases of pharmaceutical preparations namely, Re : Bayer Products, Lids Application, (1947) 2 AU. E. R. 188, (2) Geigy A. G. v. Chelsea Drug and Chemical Company Limited, (1966) RPC 64 (3) and Indo-Pharma Pharmaceutical Works Pvt. Ltd. v. Farbenfabreken Bayer Ag. , (1975) RPC 545. (4) He also referred to the decision in the case of Stadmed Pvt. Ltd. , Calcutta v. Hind Chemicals, Kanpur, AIR 1965 Punjab 17; (5) Mount Mettur Pharmaceuticals (P) Ltd. v. Dr. A. Wander, AIR 1977 Madras 105 (6) and Chemical Industrial and Pharmaceutical Laboratories Ltd. v. A. Wulfing and another,, (1979) 3 IPLR 193 (Born. HC). (7) He also referred to para 671 of Narayanan on Trade Marks and Passing-Off (Third Edition). These judgments deal with cases of pharmaceutical preparations and a similar view has been taken in all these judgments as was * taken by the Supreme Court in F. Hoffimanns case (supra) i. e. that the question of deceptive similarity must be decided on the basis of class of goods to which the two trade marks applied. We have to judge the case of the plaintiff on the principal as stated above.

(4) THE two trade marks in question are obviously not similar visually as the trade mark of the defendant starts with the letter cu preceding the entire trade mark reclor of the plaintiff. There is also an addition of the letter h after the letter c of reclor". Phonetically also there is a distinct dissimilarity between the two trade marks reclor and chrechlor. I do not agree with the submission of Mr. Anoop Singh that there is a great similarity in the two marks phonetically as suggested by him that the lettet cu which creates the distinction in the two marks phoneticallv may sometimes be spoken feebly or may not be quite audible to a person with whom an order is placed for the sale of reclor It is also worthnoting that that the name of the defendant company is Cuiewel (Tndia) Ltd. The defendant has filed its price list effective from July 1, 1985. This shows that the plaintiff has brand names for anumber of its preparations starting with the word cure such as curecycline, curemide, curemox Curifam. Curebutorl curepar and curedopa Nothing has been alleged by plaintiff that the defendant has adopted the trach mark Curcchlor dishonestly with a view to trade on the trade mark reclor of the plaintiff. To the contrary the fact that the plaintiffs name is Curewsl and a number of its products have the letters cure appended in the beginning to its brands goes to show that the adoption. of She trade mark Curechlor by the defendant for marketing cholramphenical which is the base drug, is a bena fide one. The defendants counsel explained that the defendant has adopted the letters cure from its trading style and has adopted the word chlor from the product itself just as the plaintiff has done for Its mark rcclor as is the common practice with the pharmaceutical companies. The preparation chloramphenicol which is being marketed by both the sides under ihe two brand names is admittedly a Schedule h" drug end as per sub-rule (9) (a) of Rule 65 of the Drugs and Cosmetics Rules, 1945 substances specified in Schedule or Schedule X shall not be sold by retail except on and in accordance with the prescription of a- Registered Medical Practitioner. The supply of drugs specified in Schedule or Schedule X to Registered Medical Practitioners, Hospitals, Dispensaries and Nursing Homes can also be made only against the signed order in writing which ha.) to be preserved by the licensee for a period of two years. There are conditions given for the purposes of preparation of prescriptions also with regard to the Schedule drugs. Sub-rule (11) of Rule 65 says that persons dispensing a prescription containing a drug specified in Schedule H, like the drug in question, shall comply with the requirements as detailed thereunder which also places a number of restrictions on the dispensing chemists for their sale to customers. The dispensing chemists also according to these rules have to be persons qualified in the Science of Pharmacology. Thus keeping in view these safeguards and restrictions regarding the stocking and sale to customers thereto by the chemists I am of the considered view that the chemists who alone are to sell the product in question to customers are not likely to be confused by the trade mark of the defendant when they have to sell the product of the plaintiff under the brand name rector. It may also be stated that the plaintiff has not placed any material whatsoever on the record to prima facie show, nor even alleged that any particular person whether an ordinary customer or a chemist was misled to take the product of the defendant as that of the plaintiff. The plaintiff has placed two cash memos on the record relating to the sale of the product of the defendant under the name curechlor. In both the cash memos the name of the patient as also the name of the doctor prescribing the same are duly given which showed that the preparation in question of the defendant is sold only on the prescription of a Medical Practitioner. Thus in view of what has been said above I am of the view that the plaintiff does not have a goods prima facie case and it does not have a good chance of ultimate success in the suit for the perpetual injunction as prayed for by it.

(5) MR. Anoop Singh, learned counsel for the plaintiff, also cited a number of judgments in support of his contention that the trade mark curechlor is deceptively similar to the trade mark rector in respect of medicinal preparations. It was pointed out that in the case of Kemp and Co. Ltd. v. Cadilla Laboratories Private Limited, (8) a photo copy of which judgment was placed on the record, an order allowing a temporary injunction in favour of Cadilla plaintiff j respondent, restraining the defendant/appellant from using the trade mark kempsillin in respect of the medicinal preparation was affirmed. In that case the plaintiffs registered trade mark was campicillin. A perusal of the judgment shows that the ratio ot the decision in that case was that there was 99 per cent phonetical similarity in the two names. Such is not the position in the present case when we compare the two marks reclor and curechlor. In Standard Pharmaceuticals Limited v. U. P. Drug Pvt. Ltd. 1980 IPLR 117, (9) the Lucknow Bench of the Allahabad High Court held that the trade mark winotone amounted to infringement of the trade mark vintone when both of them were in respect of medicinal preparations. There is obviously a great similarity phonetically in both these marks. Besides that the preparations in that case were mere tonics and were not Schedule c or Schedule h drugs. RS so that they were to be dispensed by the chemists on a prescription of a Medical Practitioner only. This judgment is, therefore, distinguishable from the present case and is of no help to the case of the plaintiff

(6) NONE of the other judgments as referred to by Mr. Anoop Singh relates to the case of medicinal and pharmaceutical preparations and they deal with general classes of consumer goods and they are not quite relevant for the purpose of the present case as the present case relates to the trade mark in relation to pharmaceutical preparations.

(7) IN conclusion I find no merit in the application and the same is dismissed.

Suit No. 2152/85

The parties are directed to appear before the Deputy Registrar on March 18, 1986 for admission I denial of documents and the suit be listed before the Court on May 26, 1986 for framing of issues.