(Prayer : Appeals filed under Order XXXVI, Rule 9 of the Original Side Rules of the Madras High Court read with Clause 15 of the Letters Patent against the order passed by a learned single Judge of this Court dated 23.11.2009 in O.A.Nos.1130 and 1131 of 2009 in C.S.No.985 of 2009).

Prabha Sridevan, J.

The plaintiff is the appellant. The suit was filed for an injunction restraining the respondents from infringing the registered trade-mark VENIZ by use of deceptively similar trademark VENZ or any mark deceptively similar to that of the plaintiff and for other reliefs.

2. The plaintiff carries on the business of manufacturing medicinal preparations. It is an established and well known pharmaceutical company marketing drugs and formulations since 1983. According to the plaintiff, such preparations are sold all over the country on an extensive scale. The plaintiff claims that in the speciality therapy areas like Psychiatry, Neurology and Cardiology, it is one of the top three companies. The plaintiff manufactures medicines for treatment of major depressive, generalize anxiety, social anxiety, panic disorders and various other disorders requiring antidepressant medicines. In the year 2000, the plaintiff had applied to the Drug Controller for permission to manufacture Venlafaxine Extended Release (XR) Capsule for treatment of major depression disorders under the trademark VENIZ. Upon receipt of license, the plaintiff commenced manufacture of the medicinal and pharmaceutical preparations under the trademark VENIZ XR for 37.5 mg and 75 mg, which are sold in strips in varying strengths. The plaintiff also acquired drug license for manufacture of medicinal preparations under the mark VENIZ XR for 150 mg. The plaintiff became the registered proprietor of the mark VENIZ XR under No.949364 dated 22.8.2000 in respect of medicinal and pharmaceutical preparations and substances. The registration contains the condition and limitation that the trademark VENIZ XR shall give no right to the exclusive use of the word XR, since terminologies such as XR, OD, SR, etc., refer to the characteristics of the drug, viz. Extended Release (XR), once a Day (OD), Sustained Release (SR) etc. the plaint gives the details of the sale turnover of the plaintiff for the period 2000-2001 to 2008-2009. According to them, the long and continuous use of the trademark VENIZ in respect of medicinal preparations has come to be identified only with the plaintiff.

3. In or about 2009, the plaintiff came across the defendants preparation bearing the mark VENZ-OD. On enquiry, they found that the tablets contain Desvenlafaxine, which is the major active metabolite of the antidepressant Venlafaxine and is used in treatment of major depressive disorders and other psychotic disorders. Therefore, they issued a legal notice on 25.8.2009 asking the defendants to cease and desist. Since the defendants refused, and since according to the plaintiff, the defendants mark VENZ is prima facie visually, phonetically and structurally similar to the plaintiffs registered trademark VENIZ, the suit was filed and interim injunction was sought for.

4. The defendants filed a counter wherein they raised the question of territorial jurisdiction. With regard to trademark, it was stated that they coined and adopted the trademark VEN-OD for its product Venlafaxine by adopting VEN from the name of the drug and OD to signify ONCE A DAY and launched the product in September, 2001. When they decided to launch a new product with the active ingredient Desvenlafaxine, which is an isomer of Venlafaxine, having better efficacy and less side effects, which they developed after undertaking toxicology studies, clinical trails and bioequivalence study, they decided to modify their mark VEN and took the first letter Z from the defendants housemark ZYDUS and coined the trademark VENZ for the product Desvenlafaxine. Thus, this was the reason for their launching the mark VENZ on 3.8.2009.

5. According to the defendants/respondents, for the purpose of infringement or passing off, the rival trademarks VENIZ-XR and VENZ-OD need to be considered and compared for any alleged similarity or alleged confusion. According to them, there is clearly no similarity between VENIZ-XR and VENZ-OD visually, phonetically or structurally. The plaintiffs trademark is an usage of the basic molecule which is Venlafaxine and Venlafaxine cannot be exclusively used by the plaintiff in view of the fact that it is publici juris. The defendants trademark, on the other hand, is VENZ-OD is a coined word. According to the defendants, they have a large number of products with the brand portfolio having suffix Z. They have also referred to the practice of pharmaceutical companies of deriving the name of the drug from the Active Pharmaceutical ingredient. The defendants have pointed out the salient differences between the two products and therefore claimed that the injunction ought not to be granted.

6. The learned single Judge, on a detailed consideration of the submissions made by both sides, vacated the order of injunction.

7. Learned senior counsel Mr. Aravind P. Datar appearing for the appellant submitted that the comparison has to be between VENIZ-XR and VENZ-OD and when the marks are compared in totality, there is a clear phonetic similarity. The mark has to be seen as a whole and it cannot be vivisected. It was submitted that while there are many drugs using the alphabet VEN to indicate the relevant molecule, different suffixes have been added to distinguish the products of the different manufacturers and as instances, they have referred to VENFAX, VENIZ, VENJOY, VENLA, etc. According to the learned senior counsel, the adoption by the defendants of VENZ-OD from VEN-OD after gap of eight years was dishonest. It was submitted that in fact, the defendants ought not to use the word OD since this drug is meant for Extended Release and not Once a Day and there is a huge difference in the impact if a tablet, which is an extended release tablet, is taken instead of a once a day or vice versa. It was submitted that the fact that the font size is different are all not relevant. Several invoices had been produced by the defendants to show that there was no confusion in the minds of the doctors who had prescribed the two drugs. Learned senior counsel submitted in this regard that those bills do not indicate the doctor or the patients names, but only the respondents name. Learned senior counsel Submitted that once it is shown that the plaintiffs trademark is registered, statutory protection must be given. Learned senior counsel referred to the following judgments:

Medley Laboratories (P) Ltd. vs. Alkem Laboratories Ltd., 2002 (25) P.T.C. 592

Strassenburg Pharmaceuticals Limited vs. Himalaya Drug Company, 2002 (24) P.T.C. 441 (Cal.)

Ciba Geigy Limited vs. Crosslands Research Laboratories Ltd., 1995 P.T.C. 251

Sun Pharmaceutical Industries Limited vs. Wyeth Holdings Corporation, 2005 (30) P.T.C. 14 (Bom.)

Larsen & Toubro vs. Lachmi Narain Trades, 2008 (36) P.T.C. (Del.)

Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhati, (2004) 3 S.C.C. 90

M/s. Wockhardt Limited, Mumbai vs. M/s. Aristo Pharmaceuticals Limited, Chennai, 1999 M.L.J. 467

Wyeth Holdings Corporation vs. Burnet Pharmaceuticals (Pvt.) Ltd., 2008 (36) P.T.C. 478 (Bom.)

8. Learned Advocate General Mr. P.S. Raman appearing on behalf of the respondents, submitted that the injunction was rightly refused. He submitted that though the trademark registration itself shows that there cannot be exclusive use of the word XR, the word VENIZ-XR should be considered as a whole and the registration of the trademark is only for VENIZ-XR, as can be seen from the Registration Certificate. There is no question of the word VENZ-OD infringing the trademark VENIZ-XR. He further submitted that the very fact that there are several other pharmaceutical companies which manufacture drugs using the basic ingredient would show that the plaintiff cannot claim that it has a right to use the prefix VEN exclusively. He also referred to the various drugs manufactured by the respondents where the alphabet Z is used. He relied upon the following decisions:

Astrazeneca UK Ltd. vs. Orchid Chemicals & Pharmaceuticals Ltd., 2007 (34) P.T.C. 469 (DB)

Cadila Laboratories vs. Dabur India Limited, 1997 P.T.C. (17) 417

Indo-Pharma Pharmaceutical Works Ltd., Mumbai vs. Citadel Fine Pharmaceuticals Ltd., Madras, 1998-2-L.W. 646=1998 P.T.C. (18) 775 (DB)

Wander Ltd. vs. Antox India P. Ltd., 1990 (Supp.) S.C.C. 727

Ruston & Hornsby Ltd., vs. The Zamindara Engineering Co., (1969) 2 S.C.C. 727

9. The learned single Judge, after considering the rival submissions, held that if the two words VENIZ and VENZ are taken as such, there could not be any second thought that they are phonetically similar, and that phonetically both are one and the same and that even experts would not be able to distinguish between the two names phonetically. After having held so, the learned single Judge felt that since the plaintiff does not have the trademark right in respect of the two letters XR and since in the blister concerned, it is projected as VENIZ-XR, the learned single Judge was of the view that neither a doctor nor the common man will be carried away that both are one and the same.

10. Section 29 of the Trade and Merchandise Marks Act, 1958 deals with infringement of trademarks and it reads as follows:-

29. Infringement of trade marks. (1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) In an action for infringement of a trade mark registered in Part B of the register, an injunction or other relief shall not be granted to the plaintiff if the defendant establishes to the satisfaction of the court that the use of the mark, of which the plaintiff complains, is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods in respect of which the trade mark is registered and some persons having the right, either as registered proprietor or as registered user, to use the trade mark.

11. In 1997 (17) P.T.C. 417 (supra), the two marks in question were MEXATE and ZEXATE. It was held in paragraph 7 of that judgment that the prefix is more important than the suffix and that the two marks are entirely different and dissimilar and therefore, the application for stay was dismissed. In 1998 (18) P.T.C. 775 (DB) (supra), the marks were ENERJASE and ENERGEX. It was held therein that the two words JEX and JASE are totally dissimilar and are not going to create any confusion in the mind of the users. It was further held that a generic name of a product cannot be treated as a trade mark to indicate the origin and that nobody can claim exclusive right to use such an abbreviation. In 2007 (34) P.T.C. 469 (DB) (supra), a Division Bench of the Delhi High Court considered the two trade marks MEROMER and MERONEM. The Bench held that, the common prefix MERO used in both names was part of the molecule MEROPENEM and similar prefix was used for a number of other preparations using the said mark, and there was no phonetic or deceptive similarity. In that case, both trade marks MEROMER and MERONEM had been registered. In Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd., (2001) 5 S.C.C. 73, the Supreme Court held, in comparing the marks FALCIGO and FALCITAB, that they cannot agree that the principle of phonetic similarity has to be jettisoned when the manner in which the competing words are written is different and the conclusion so arrived at is clearly contrary to the binding precedent laid down in Amritdhara Pharmacy vs. Satya Deo Gupta, A.I.R. 1963 SC 499 [LQ/SC/1962/11] . The Supreme Court confirmed the principle that where the similarity between the plaintiffs and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs right have been violated vide Durga Sharma vs. Navaratna Pharmaceutical Laboratories, A.I.R. 1965 S.C. 980.

12. Pidilite Industries Ltd. vs. S.M. Associates, 2004 (28) P.T.C. 193 (Bom.) was strenuously relied on by the respondents. It was submitted that this was judgment of a learned single Judge of the Delhi High Court and where injunction was granted. It was submitted that the facts in that case were very similar to the present case. There, the plaintiffs registered trade mark was M-SEAL and the defendant adopted the mark S M-SEAL. Both the parties sold the goods through the same trade channel. The invoice of the dealers showed extensive use of the marks, and the marks used by the defendants were deceptively similar to that of the plaintiff. On the question of infringement of trademark, the learned single Judge considered the fact of the disclaimer of the word SEAL. It was contended that while considering the question of infringement of a trademark, the Court must ignore the word SEAL and then Judge whether the first defendants mark is deceptively similar to the residual part of the plaintiffs mark, which would now only comprise of the letter M. The learned Judge disagreed and was of the opinion that regard must be had of the whole of the plaintiffs mark, including the disclaimed word while deciding the question of infringement. He illustrated this matter further by carrying the argument to its logical conclusion, observing that if the disclaimed word is to be ignored, all that would be left is the embellishments and that is not how a person in the market would view the marks while purchasing the product. In that case, therefore, the learned Judge took the trademark as a whole and then came to the conclusion that the first defendant had adopted the mark as well as infringed the plaintiffs copyright. This decision was relied on by the learned senior counsel appearing for the respondents to show that if the same course is adopted here, then this Court would have to see whether VENZ-OD would infringe VENIZ-XR and that there can be no doubt that there was no similarity between the two and therefore, there is no question of infringement. It was, therefore, submitted that the injunction was rightly refused.

13. In Apex Laboratories Ltd. vs. Zuventus Health Care Ltd., 2006 (33) P.T.C. 492 (Mad.) (DB), the two medicinal preparations were ZINCOVIT and ZINCONIA. The word ZINC was common to the trade and is publici juris. The Division Bench held that the appellant cannot claim ownership over the said word and it would be dangerous to split the word into two and grant injunction merely because both the trade names contained the word ZINC. In 2002 (24) P.T.C. 441 (Cal.) (supra), injunction was granted in favour of EFACID against EFCID-CA, relying on Cadila. In 1995 P.T.C. 251 (supra), a Division Bench of this Court observed as follows:-

It is significant to note that in these cases, the expression GEL is a separate word, whereas in EMULGEL and EUGEL, they are part and parcel of the product name. The dispute is about the part and parcel of the two rival word marks. In deciding the question of similarity between two rival marks, they have to be considered as a whole. One part of the word cannot be taken out and compared with the part of the other word. There may be two words which in their component points are widely different but which when read or spoken together may represent something which is so similar as to lead inevitably to confusion. The correct method to adopt is not to divide the word and seek to distinguish a portion of it from a portion of the other word. The true test whether the totality of the proposed trade mark is such that it is likely to cause mistake or deception or confusion in the minds of persons accustomed to the existing trade mark. Where both the words are invented and both contained descriptive element, one cannot disregard such element of the words which are descriptive and compare only with the remaining parts of the words. The question of likelihood of confusion has to be decided by comparison of the mark as a whole.

14. In 1990 (Supp.) S.C.C. 727 (supra), the Supreme Court drew the difference between an infringement action and a passing of action and observed as follows:-

16. An infringement action is available where there is violation of specific property right acquired under and recognized by the statute. In a passing-off action, however the plaintiffs right is independent of such a statutory right to a trade mark and is against the conduct of the defendant which leads to or is intended or calculated to lead to deception. Passing-off is said to be a species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which another has established for himself in a particular trade or business. The action is regarded as an action for deceit. The tort of passing-off involves a misrepresentation made by a trader to his prospective customers calculated to injure, as a reasonably foreseeable consequence, the business or goodwill of another which actually or probably, causes damages to the business or good of the other trader.

In (1969) 2 S.C.C. 727, the Supreme Court observed as follows:

7. In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the register, but something similar to it, the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity or marks is the same both in infringement and passing-off actions.

15. In U.S.V. Limited vs. Systopic Laboratories Limited, 2004 (1) C.T.C. 418 =2004-2-L.W.79, a Division Bench of this Court, considering the rival cases of PIO and PIOZ, observed as follows:-

29. We are very well aware that it is common in Pharmaceutical trade to take a few letter of a chemical or even part of the word and add a few more alphabets to them and market the said preparation under a brand name. A look at the Indian Drug Review (IDR), Sept.-Oct. 2003 issue at page-526, shows that PIOGLITAZONE does not appear to inhibit any of the major P450 enzymes at clinically relevant concentrations. The pharmacokinetics of pioglitazone was not altered following its concurrent administration with metformin. Co-administration of glipzide (5 mg. once daily) for seven days had no clinically relevant effect on the pharmacokinetics of Pioglitazone. It further reveals that PIOGLITAZONE is marketed by several companies under various brand names like PEPER, PIOGLAR, PIOGLIT, PIOGLU, PIOKAP, PIOLEM, PIOLET, PIOMED, PIONORM, PIOREST, PIOSTAR, PIOSAFE, PIOTAZ, PIOTOP, PIOTROL, PIOZED, PIOZIT, PIOZONE, DIAGLIT, G-TASE, GLITO, GLITTER, GLIZONE, GLUFIT, OGLO, OPAM AND PIO.

30. Several more examples could be given by this court that, while marketing a product, the manufacturers take two or more alphabets from the name of the chemical and add one or more alphabets to the same and market them under a brand name containing the said chemical as a medicine. In this case, the plaintiff has been marketing his product under the brand name PIOZ, and the defendant has been marketing his product under the brand name PIO, but both containing PIOGLITAZONE. The plaintiff had taken PIO and the alphabet Z from the word PIOGLITAZONE and named his produce as PIOZ, whereas the defendant stopped with the first three alphabets PIO of the chemical PIOGLITAZONE, while naming his brand. There are more than 28 manufacturers of PIOGLITAZONE with various brand names and out of those 28, 19 are using the letters PIO and some others are using the other letters from the word PIOGLITAZONE.

31. It is to be remembered that if a word is an invented word, the protection for the invented word is of a higher degree, whereas the medicines, which have brand names containing few letters of the chemical, the protection is not that higher.

.

38. Keeping the above principles of law laid down by the Supreme Court, we will now try to analyse the facts in this case to find out whether the word PIO is publici juris and whether the plaintiff is entitled for an order of injunction.

..

40. It is no doubt true that the alphabet Z is a soft consonant, but it is difficult to hold that the brand name PIOZ is similar to the brand name PIO. Anyone pronouncing the word PIOZ and PIO will be easily able to distinguish PIOZ as different from PIO, since the alphabet Z is distinctly heard when the word PIOZ is pronounced. If the alphabet Z is silent in a word when pronounced, then it could be said that there is likelihood of confusion among the unwary purchasers. For instance RENDEZVOUS, a French word, which is spelt as RON-DHE-VOO shows that while other words ALCORZA and ALCORRAZA, which are spelt as AL-KOR-THA and AL-KA-RA-THA respectively and in both words the alphabet Z is silent while they are being pronounced. The word SHAA is spelt as CHEZ wherein also the alphabet Z is silent while it is pronounced.

41. When we pronounce PIOZ, it cannot be said that though the letter Z is added to the word PIO, the alphabet Z is silent while pronouncing leading to a confusion among the unwary purchasers. In our view, PIO is distinctive and dissimilar to the word PIOZ since the alphabet Z in the name PIOZ is distinct and shows the difference between the two brands.



43. It is course true that in the above appeal the parties have entered into a compromise and the defendant in that suit agreed to change the brand name PIOZED to PIOMED and the compromise could have been entered between the parties on account of any number of reasons. But that does not take away the stand taken by the plaintiff/appellant in that case that he has no grievance for the defendant to use the word PIO. In this background also, the appellant cannot claim that the defendant by selling his product under the brand name PIO is eating into his business and profits and that the words PIO and PIOZ are similar in nature. We have already held that the two words PIO and PIOZ are distinct the phonetically dissimilar and, therefore, the plaintiff is not entitled for injunction.

According to the respondents, this decision squarely applies to their case. 16. In 2002 (25) P.T.C. 592 (supra), the two trademarks were SUPAXIN and SPOXIN and there, the learned single Judge held that the relief cannot be granted because

a) SPOXIN and SUPAXIN are not phonetically similar;

b) the packing of both the products is different;

c) they are not sold across the counter, but are prescribed drugs;

d) the explanation offered by the defendant for adoption of the mark SUPAXIN is a plausible explanation;

e) there is nothing on record to show that there was confusion on the part of the customers, and on the contrary, from the affidavits of doctors and chemists, it is clear that both the medicines are different;

f) both the parties entered the market almost simultaneously;

g) the suit was filed by the plaintiffs as late as in July, 2001;

h) the sale of the defendant was over 60 lacs per month-much more than that of the plaintiffs; and

i) that there is nothing on record to show that by administering the drug prescribed, if a wrong drug is given, there is likelihood of repercussion on health.

The Division Bench disagreed with the findings of the learned single Judge and held that once the plaintiffs mark is registered, what was necessary for the plaintiffs to show was that the defendant had used a mark deceptively similar to that of the plaintiffs, and in view of the registration of marks, the plaintiffs had an exclusive right to use the said mark SPOXIN and were also entitled to prevent any other person from using an identical mark or a mark deceptively similar to such mark. The Division Bench held that once the mark is identical or deceptively similar, the other factors, viz. packaging being different, the number of tablets in the competing package not being the same, the prices not being identical and goods being sold on doctors prescription were all irrelevant and immaterial. The Division Bench referred to the relevant judgments and also the effect of similarity in the marks of drugs which may have a marked difference in the composition with completely different side effects and held that the test of possibility should be applied-whether any harm would result from confusion on the part of the customers which may have unpleasant, if not disastrous results. They also referred to the judgment of the Supreme Court that a stricter approach should be adopted while applying the test with regard to medicinal products. The learned Judges held as follows:-

24. In Cadila also, it was argued that the fact that the drug was Scheduled Drug or could be sold only under prescription or only to physicians, could not, by itself, be considered sufficient protection against confusion. The physicians and pharmacists are trained people but are not infallible. It was stated:

In view of the varying infrastructure for supervision of physicians and pharmacists 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.

25. The Court referred to the following observations in R.J. Strasenburgh Co. v. Kenwood Laboratories, INC., 1955, 106 UPSQ 379:

The defendant concedes that physicians and pharmacist are not infallible but urges that the members of these professions are carefully trained to detect differences in the characteristics of pharmaceutical products. While this is doubtless true it does not open the door to the adoption by manufacturers of medicines of trade marks or names which would be confusingly similar to anyone not exercising such great care. For physicians and pharmacist are humans and in common with the rest of mankind are subject to human frailties. In the field of medicinal remedies the Courts may not speculate to whether there is a probability of confusion between similar names. If there is any possibility of such confusion in the cases of medicines public policy requires that the use of the confusingly similar name be enjoined [See Lambert Pharmacol Ltd. v. Bolton Chemical Corporation, DCNY 1915, 219 F. 325, 326].

26. Taking into account public interest element in case of medical preparations, it was stated:

Public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other non-medicinal products. Drugs are poisons, not sweets. Confusion between medicinal products may, therefore, be life threatening, not merely inconvenient. Nothing (sic) 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.

27. According to the Supreme Court, therefore, a stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product for another by a consumer. Confusion in the case of non-medicinal product may only cause economic loss to the consumer. Confusion between two medicinal products may have disastrous effect on health, and in some cases, on life. Hence, in medicinal preparations, much more care should be taken and the Court must be circumspect in dealing with the matters and in making appropriate orders.

28. The case of the appellants is that suffix XIN being common to both the drugs, there is likelihood of confusion. The mark of the plaintiffs is registered, and, hence, it has statutory protection. It relates to a medicinal preparation. In the circumstances, in our opinion, the test of possibility laid down in Cadila Health Care Ltd. would apply. Applying the said test, there is likelihood, or in any case, possibility of consumer being confused, and the plaintiffs were entitled to interim injunction. Moreover, SPOXIN and SUPAXIN are visually, phonetically and structurally similar. No doubt, both the drugs are sold under prescription, but that fact alone is not sufficient to prevent confusion which is likely to arise.

The Division Bench further held that though it is true that normally in discretionary matters, an appellate court will not interfere with the order passed by the trail court, when the correct test is not applied, it was open to the appellate court to interfere with the discretionary order passed by the trail court.

The Division Bench observed as follows:

32. The principle that normally, in discretionary matters, an Appellate Court will not interfere with the order passed by the trail Court is well settled. At the same time, however, when an adjudication has been made, may be prima facie, and in doing so, correct test has not been applied, it is open to the Appellate Court on interfere with the discretionary order made by the trail Court. In the instant case, correct test is possibility of confusion and not actual confusion which should have been brought on record by placing necessary material. The point is finally set at rest in Cadila Healthcare Ltd. and, hence, the order passed by the learned single Judge cannot be sustained.

17. We are of the opinion that the case referred to above is almost identical to the case on hand, the only difference being, of the nine grounds on which the learned single Judge of the Bombay High Court refused to grant the interim relief sought for therein, in this case, on the most crucial and vital aspect, the learned single Judge and in fact held that the two marks are phonetically similar. Another difference is (1) VENIZ-XR and VENZ-OD did not enter the market simultaneously; VENIZ-XR preceded VENZ-OD by several years. Yet another difference is (2) The explanation for adoption does not quite ring true. The defendants were marketing this Venlafaxine drug as VEN OD, which was unobjectionable. When they introduced their Desvenlafaxine drug, adoption of DEVENOD may have been plausible. But, to say that they adopted VENZ OD because their house name is Zydus is not very convincing.

18. Be that as it may, once the learned single Judge had come to the conclusion that the two marks are phonetically similar, then all that the plaintiff had to show was that their mark was registered, injunction ought to have followed, based on their statutory right. The fact that one was a blister pack and the other was a strip pack is not relevant to decide the said question. The difference with regard to XR and OD is also only in favour of the appellant. It is true that the trademark has to be taken as a whole and therein lies the case in favour of the appellant. It is possible for the respondents goods to be treated as identical or very similar to that of the plaintiffs. It is possible for the consumer to think it was identical, the only difference being that one was an extended release tablet, while the other was once a day tablet. The similarity is apparent. The defendants have not persuaded us that their product is not likely to deceive or cause confusion. So, the relief of injunction must be granted.

19. For all these reasons, the order of the learned single Judge dated 23.11.2009 passed in O.A.Nos.1130 and 1131 of 2009 in C.S.No.985 of 2009 is set aside. The original side appeals are accordingly allowed. There shall be injunction as prayed for in the applications pending disposal of the suit. In the circumstances of the case, there shall be no order as to costs. Consequently, M.P.Nos 1 and 1 of 2009 are closed.