Water Bush Well Ltd. v. Anil Arora

N.G Nandi, J.:— In the suit alleging infringement of plaintiff's registered trade mark AMCLOX by the defendants, seeking to restrain the defendants by perpetual injunction from using the mark AMPCLOX-500, the plaintiff, by this IA, seeks to restrain the defendants from manufacturing, selling, offering for sale, advertising, directly or indirectly, dealing in medicinal preparations under the impugned trade mark AMPCLOX or any other mark, identical and/or deceptively similar to the plaintiff's trade mark AMCLOX, pending the hearing and disposal of the suit.

2. It is the say of the plaintiff that the plaintiff has been dealing in the mark AMCLOX since 1978, whereas, according to defendant, defendant has been using AMPCLOX since 1988. As far as the contents of the preparations of plaintiffs and defendants' are the same and the drug is scheduled “H” drug, meaning thereby that the same can not be ordinarily sold without the prescription of the medical practitioner.

3. The plaintiff's mark is at page 79. These are capsules in blue & white colours with mark AMCLOX in blue colour whereas the defendant's mark AMPCLOX-500, is at page 80. These are also the capsules in blue and white with words AMPCLOX-500 in blue colour but in slightly, different in shade than that of plaintiff's mark.

4. As far as the mark “AMCLOX” and “AMPCLOX-500” of the plaintiff and the defendant, respectively, and the capsules therein in the colour combination of blue & white is concerned prima facie, the same appears, visually and phonetically, to be deceptively similar.

5. As far as the drug being scheduled ‘H’ drug, which can not be sold ordinarily without the prescription of a medical practitioner is concerned, it may be seen that for a minor complaint or indisposition, one does not always go to the medical practitioners and some medicinal preparations, even be that a scheduled ‘H’ drugs, would be of a frequent use and a patient/person would rush to the chemist directly without obtaining the prescription of a medical practitioner for purchasing such medicinal preparation. The question is whether a purchaser is likely to be deceived looking to the colour combination of the capsules and/or the mark or not also considering to phonetical deception of the marks.

6. I am prima fade of the view that a customer is likely to be deceived by mark AMPCLOX because letter ‘P’ in defendant's mark would be not that active and while hearing, it would sound more similar to plaintiff's mark and phonetically significance of ‘P’ cannot be made out that clearly.

7. Under the circumstances, deception is likely to be caused to the purchaser of the drug, considering both the marks, occularly as well as phonetically, as stated above.

8. Under the circumstances, I am prima facie not inclined to accept the contention of the defendants that because the drug is a schedule ‘H’ drug, there is no possibility of deception being practised on the purchaser of the drug and considering the facts and circumstances, I am inclined to make the order dated 12.8.1994 absolute pending the hearing the disposal of the suit by granting this I.A

9. In the result, the IA stands granted, the order dated 12.8.94 is made absolute, pending the hearing and disposal of the suit.

10. I.A stands disposed of.

S. No. 1783/94

11. For production, admission/denial, list before the J.R on 27.10.1995