B.N. Kirpal, J.

1. The plaintiff has filed a suit alleging that its registered trade mark CALMPOSE has been infringed by the defendant, who is manufacturing similar medicine and marketing under the mark of CALMPROSE. The prayer in the suit is for a perpetual injunction and for a decree for rendition of accounts.

2. Along with the plaint the plaintiff has also filed an application under Order 36 Rules 1 & 2 CPC and has prayed for an ad interim injunction. It is averred that the plaintiff has had the trade mark registered since 6th March 1900 and has sold CALMPOSE worth about Rs. 40.16 crores since its adoption and has spent about Rs. 16.43 lakhs on sales promotion from January to August, 1987. The said medicines are Dazepam tablets of 5 mg each. It is also contended that not only is the mark of the defendant phonetically and visually similar, but even the packing of the defendant of the said medicine is similar to that of the plaintiff. The plaintiff is using two colours, namely, silver and brown and the packing is done in aluminium foil on one side and polythene film on the other; and the packing of the defendant is similar to that of the plaintiff.

3. Ad interim ex parate injunction was issued. In the reply which has been filed it is contended that medicine in question is sold by chemists on the prescription of a medical practitioner and, therefore, the person cannot be deceived by the said mark. It is further contended that the words used on the strips containing the medicine are different and the word CALMPROSE is phonetically different from the plaintiffs mark CALMPOSE.

4. Shri Bharat Inder Singh, learned counsel for the defendant has raised two contentions before me. He has firstly submitted that the two marks are phonetically different. In this connection, he relies upon a Division Bench authority reported as Stadmed Private Ltd. v/s Hind Chemicals (AIR 1965 Punjab 17). In this case the two words involved were ENTOZINE and ENTROZYME. The High Court came to the conclusion that the said words were phonetically different. In my opinion, the two words in the present case, namely, CALMPOSE and CALMPROSE are phonetically and even visually similar. What the defendant has done is to insert the letter R in the middle of the word and converted CALMPOSE to CALMPROSE. The intention of the defendant clearly is to cash in on the reputation which has been built up by the plaintiff over the years in the sale of its medicine CALMPOSE, the turnover of which is stated to be over Rs 40 corers. It is certainly not by accident that the defendant has coined or hit upon the word CALMPROSE. It is, to my mind, a deliberate attempt to adopt another persons trade marks to ones advantage.

5. The decision of the Punjab High Court in Stadmeds case (supra) cannot be of any assistance to the defendant in the present case. The spellings of the two words ENTOZINE and ENROZYME are different because the word ENTROZYME contained three letters R, Y & M which are not present in the word ENTOZINE. It is true that the Court in that case felt that the two words were not phonetically similar, but in this regard reference may also be made to the following observations of another Division Bench of the Punjab High Court in the case of Anglo-French Drug. Co. (Eastern) Ltd. Vs Belco Pharma (AIR 1984 Punjab 430) where with reference to the decision in Stadmeds case (supra), the High Court observed as follows: -

We are not called upon to decide whether ENTROZYME and ENTOZINE are phonetically and visually similar, but we had a case like this before us, we might have taken the view that the two names are visually and phonetically similar.

I also tend to agree with the observations of Punjab High Court in Anglo-Frenchs case. In any case, I have no doubt in my mind that the two words CALMPOSE and CALMPROSE are phonetically similar.

6. It was then contended by the learned counsel for the defendant that the said medicines can only be sold on the doctors prescription and, therefore, there can be little likelihood of confusion. It is true that the said drugs are supposed to be sold on doctors prescription, but it is not unknown that the same are also available across the counters in the shops of various chemists who may not have CALMPOSE may pass of the medicine CALMPROSE to an unwary purchaser as the medicine prepared by the plaintiff. The test to be adopted is not the knowledge of the doctor, who is giving the prescription. The test to be adopted is whether the unwary customer, who goes to purchase the medicine can make a mistake.

7. I have also been shown the strips containing the medicines manufactured by the parties. It is clear that the dimension of the strip of the defendant is practically the same as the one made by the plaintiff; the type of packaging is identical; the colour scheme is similar and even the manner of writing is not very different. This is a clear case of an attempt by the defendant to pass off its product as that of the plaintiff.

8. For the aforesaid reasons, the interim injunction issued on 30th November 1987 is made absolute pending disposal of the main suit. I. A. stands disposed of.