A.P. Shah, J.Heard the learned counsel. Admit. Respondents waive service. By consent appeal is taken up for hearing.

2 The appellants and respondents are pharmaceutical companies. The appellants arc registered owners of trade mark "Cheri". The trade mark Cheri of the appellants has been registered in part A of the Register of Trade Marks in 1987. The appellants have been manufacturing and marketing since June 1986 medicinal preparations containing Iron (III) Hydroxide Polysucrose Complex + Folic Acid in the form of syrup, chewable tablets and capsules under the trade mark "Cheri". They have large sales of products under the said trade mark. This is apparent from the fact that the sales turnover of the products bearing trade mark "Cheri" for the year 1999-2000 is Rs. 5.70 crores.

3. In October 2000 the appellants came across the 1st respondents products bearing the mark "Cherish" which is deceptively similar to the appellants registered trade mark "Cheri". The appellants issued a cease and desist notice dated 12-10-2000 to the 1st respondent. This was replied by the 1st respondent vide letter dated 12-11-2000. A further notice was sent by the appellant vide letter dated 24-11-2000 to which a reply was given by the 1st respondent on 22-1-2001 raising several contentions. On 23-7-2001, the appellants filed a suit for injunction alleging infringement of their registered trade mark and passing off and have also prayed for decree for a sum of Rs. 1 lac by way of damages and in the alternative for a decree for rendition of accounts. Along with this suit the appellants took out a notice of motion for interim injunction. The respondents filed their reply to the notice of motion opposing the grant of ad interim /interim reliefs to which further rejoinder was filed by the appellants. No further affidavit was filed by the respondents in spite of the fact that the notice of motion was adjourned. It may be mentioned here that though we adjourned the hearing of this appeal in order to enable the respondents to file further affidavit no further affidavit is forthcoming, We have been informed by the learned counsel for the respondents that the affidavit is prepared but it is essentially for the purpose of filing the same before the learned Single Judge at the time of final hearing of the notice of motion.

4. Basically the defence of the respondents is that the marks "Cherish" and "Cheri" when compared as a whole cannot be considered to be identical or even similar to each other. Meaning of the word "Cherish" is given in the Random House Websters dictionary as nurture or care for tenderly or protect and treat with affection. Since the trademark was to be used in respect of iron supplements for pregnant woman, and anaemic individuals, the respondents thought it would aptly describe their product, and decided to adopt the word Cherish after conducting a search for the availability of the same. It is emphasised that there is no likelihood whatsoever of causing confusion during the course of trade. In this connection, it is contended that the basic composition of the formulation in syrup form under the mark Cherish (which contains essentially iron hydroxide) is different from that of appellant under the mark Cheri (which contains haemoglobin). It is also contended that the search revealed marks like Cherry-tone, Chericof, Chericold and Cherryphos. However, there was no application registered nor pending for registration for the trade mark Cherish and therefore the respondents adopted the said mark. Significantly it is not stated in the affidavit in reply whether the appellants registered mark "Cheri" was noticed or not. Lastly it is contended that the mark Cheri is neither distinctive nor is it capable of distinguishing the appellants goods from those of other manufacturers of pharmaceutical products to describe the character and quality of their product and a rectification application has been lodged by the respondents for cancellation of the mark "Cheri".

5. The learned Single Judge, after hearing both sides, declined to grant ad interim injunction mainly on the ground that the possibility of any confusion is totally ruled out because the words are totally different. To quote the words of the learned Judge "To my mind, in the present case, there is no such possibility, because the words are totally different". Secondly the learned Judge observed that there was delay in filing the suit in the sense that the appellant approached the court only in July 2001, after becoming aware of the respondents product in October 2000.

6. After hearing the learned counsel for both sides and perusal of the entire material on record we find that it is not possible to sustain the order of the learned single Judge. We are conscious of the fact that in appeal of this nature and particularly against an ad interim order, the appeal court should be slow while interfering with the discretionary order passed by the trial court. However, we find from the material on record that no other view is reasonably possible. In our opinion the learned Judge was obviously not right in declining injunction on the ground that the words are different. It is not necessary that the mark adopted by the respondents is exactly identical with that of the appellants. In the case of F. Hoffmann-la Roche and Co. Ltd. Vs. Geoffrey Manner and Co. Pvt. Ltd., the Supreme Court has laid down the test for determining whether one mark is deceptively similar to another. It is held that the mark must be compared as a whole. It is not right to take a portion of the word and say that because that portion of the word differs from the corresponding portion of the word in the other case there is no sufficient similarity to cause confusion. The true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. The Supreme Court cited with approval the test formulated by Lord Parkar in Pianotist Co Ltds case in (1906) 23 RPC 774:

"You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances, and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion that is to say not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods then you may refuse the registration, or rather you must refuse the registration in that case".

7. In Amritdhara Pharmacy v. Satya Deo Gupta reported in AIR 1963 449, coming to the conclusion that to an unwary purchaser of average intelligence and imperfect recollection, the overall structure and phonetic similarity between the two names "Amritdhara" and "Lakshmandhara" was likely to deceive or cause confusion, it was held that if a person is put in a state of wonderment it is sufficient to hold that the mark is likely to deceive or cause confusion. To quote the observations of the Supreme Court, "...,.. As we said in Corn Products Refining Co. Vs. Shangrila Food Products Ltd., the question has 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 Amridhara and Lakshmandhara is in our opinion likely to deceive or cause confusion. We must consider the overall similarity of the two composite words Amritdhara and Lakshmandhara. A critical comparison of the two names may disclose some points of difference but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with a similar name".

8. In the light of the aforesaid observations of the Supreme Court the question we must ask to ourselves is -: what would be the effect on the mind of the person of average intelligence and imperfect recollection. Applying this test which is established principle quoted above, there can be no manner of doubt that the respondents mark "Cherish" is deceptively similar to the appellants mark "Cheri". If we compare the words cheri and cherish they are structurally and visually similar as well as aurally similar and easily give rise to deception and confusion. It would be highly improbable to expect on ordinary person of average intelligence and imperfect recollection to notice the difference in the meaning of two words cheri and cherish. As there is great deal of similarity in the phonetics of these two words. This phonetic similarity taken in conjunction with the fact that there is also a similarity in the products, to our minds, undoubtedly confuse an ordinary purchaser of average intelligence an imperfect recollection and who may even be an illiterate. This is all the more manifest because entire mark of the appellants is incorporated in the mark of the respondents. We have therefore no hesitation in coming to the conclusion that the respondents mark Cherish is deceptively similar to the appellants mark "Cheri" and is likely to deceive or cause confusion. Merely because the words are different it makes no difference since possibility of confusion remains.

9 In Cadila Health Care Ltd. v. Cadila Pharmaceutical Ltd. 2001 PTC 300 the Supreme Court observed as under:

"The drugs have a marked difference in the compositions with completely different side effects; the test should be applied strictly as the possibility of harm resulting from any kind of confusion by the consumer can have unpleasant if not disastrous results. The courts need to be particularly vigilant where the defendants drug, of which passing off is alleged, is meant for curing the same ailment as the plaintiffs medicine but the compositions are different. The confusion is more likely in such cases and the incorrect intake of medicine may even result in loss of life or other serious health problems. .... Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal products 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. It is not uncommon that in hospitals, drugs can be requested verbally and/or under critical/pressure situations. Many patients may be elderly, infirm or illiterate. They may not be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to them...."

10. It would be clear from the above observations that where medicinal products are involved the test to be applied for adjudging the violation of trade marks 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. The learned counsel for the respondents however, submitted before us that not a single case of deception has been cited before the court nor any material is produced to show that any confusion was created in the minds of trader or stockists etc. It is also suggested that if sufficient time is given to the respondents it would be possible to bring evidence of the witnesses by way of affidavits that there is no such possibility of confusion .We reject this argument as untenable. As pointed out by Chagla, C. J. in Ciba Ltd. Vs. M. Ramalingam and S. Subramaniam trading in the name of South Indian Manufacturing Co. and Another, "It is not a witness or a large number of witnesses to tell the court whether there is likelihood of deception. The court cannot abdicate its own function which is to decide on looking at the two trade marks and on considering them phonetically whether they resemble each other and whether there is likelihood of deception. It is true that the absence of any evidence of deception may be material fact which the court may take into consideration but if the resemblance between the two marks is clear and obvious, then it is the duty of the court to remove from the register a mark which is likely to cause deception".

11. The submission that there is delay in approaching the court is required to be stated only to be rejected. The appellants made a grievance against infringement of their trade mark in October 2000. Thereafter correspondence went on between the parties till January 2001. The suit was filed by the appellants in July 2001. In these circumstances it is impossible to hold that the delay was such so as to disentitle the appellants from claiming equitable reliefs. It is well settled position of law that mere delay, without anything more, cannot itself be regarded as a good defence. "Inordinate delay", however, has been a factor which has been taken into consideration while declining the relief of grant of temporary injunction, e.g. in the case of Cluett Peabody and Col v. M.C Intra Hogg Marsh and Co (1958) RFC 35 injunction was not granted because the plaintiff had approached the Court after nearly 30 years. "Inordinate delay", would, therefore, be delay of such a long duration that the defendant could have come to the conclusion that the plaintiff has, possibly, abandoned his right, to seek relief or to object to the defendant using the trade mark. It would thus appear that inordinate delay would be analogous or similar to laches. It is not necessary to deal with this aspect since the respondents have not even pleaded laches on acquiescence.

12. It is submitted by the learned counsel for the respondents that the present appeal is against exercise of discretion at the ad interim stage. In such appeals the appeal court should not interfere with the exercise of discretion of court of first instance and substitute its own discretion. Reliance is placed on the following observations of the Supreme Court in Wander Ltd. and anr v. Antox India (P) Ltd., 1990(2) Arb LR 399 ;

The appeals before the division bench were against the exercise of discretion by the Single Judge. In such appeals, 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 of 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 if the one reached by the court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal 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 courts exercise of discretion".

There cannot be any quarrel with the principle that the Appellate Court would be slow in interfering with the exercise of discretion of the trial court at the interim stage. But, in the instant case, in our view the conclusion of the learned Judge was not reasonably possible on material.

13. Lastly it is contended before us on behalf of the respondents that at this ad interim stage the respondents should not be injuncted and stop their trade as it would result in loss to the respondents. It is submitted that if the appellants ultimately succeed they can be compensated in terms of damages. In our view where there is registered trade mark and there is clear infringement of the same, the court would be justified in granting injunction even at the ad interim stage. In fact this aspect was considered by Variava, J. as he then was in Anglo French Drugs and Industries Ltd. v. Eisen Pharmaceutical Company Pvt Ltd., 1998 PTC 18 who has observed as under:

"... However now, sad it is, the reality is that notices of motion do not reach hearing for years. If therefore at the ad interim stage itself the court is even prime facie satisfied that the marks are deceptively similar and that the adoption is dishonest, not to grant relief would amount to encouraging dishonest parties to use laws delays. If an injunction were to be refused defendants would continue to use the deceptively similar mark and the loss caused to plaintiffs would be irreparable".

We are in respectful agreement with the view expressed by the learned Judge. We do not see any reason as to why injunction should be denied to a party if a clear case of infringement of registered mark is made out.

14. In the result in view of the foregoing discussion, appeal is allowed. The impugned order of the learned Single Judge is set aside. There shall be ad-interim injunction in terms of prayer Clauses (a) and (b) of the notice of motion No. 1840 of 2001 in Suit No. 2594 of 2001.

15 The respondents are given four weeks time to dispose of the goods already manufactured subject to respondents filing stock statement with the Prothonotary and Senior Master within a period of 10 days from today.