rpa IN THE HIGH COURT OF JUICATURE AT BOMBAY IN THE HIGH COURT OF JUICATURE AT BOMBAY IN THE HIGH COURT OF JUICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4056 OF 2005 NOTICE OF MOTION NO. 4056 OF 2005 NOTICE OF MOTION NO. 4056 OF 2005 IN IN IN SUIT NO. 3468 OF 2005 SUIT NO. 3468 OF 2005 SUIT NO. 3468 OF 2005 Neon Laboratiories Ltd. ..Plaintiffs V/s. M/s.Vysali Pharmaceutical Ltd. ..Defendants Mr.Virag Tulzapurkar, Senior Counsel a/w.Mr.Sunil N. Nair for Plaintiff. Mr. O.S.Kutty for Defendant. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. DATE : 20TH FEBRUARY,2008. DATE : 20TH FEBRUARY,2008. DATE : 20TH FEBRUARY,2008. P.C. : P.C. : P.C. : . This is a suit inter alia for infringement and passing off of the Plaintiffs various registered word marks namely "NEOCILLIN", "NEOMET", "NEOCOD" and "NEOCARD". The Notice of Motion is taken out for the used interim reliefs in such an action. 2. I permitted Mr.Tuljapurkar to proceed on the basis of denials. 3. There is no dispute that the Defendants have in respect of their products used the word marks "NEOCILLIN", "NEOCEL", "NEOCET" and "NEOCAF". : 2 : 4. By an order dated 22nd December, 2005, I granted ad-interim reliefs in terms of prayer clauses (a) and (b) of the Notice of Motion except the word bracketed in red ink. The Court Receiver was directed with the assistance of the Plaintiffs representative to take inspection of the records of the company and copies of the relevant extracts from such records. 5. The Court Receiver has filed a report dated 25th January, 2006 in respect of his visit to the Defendants premises on 23rd January, 2006. The report containsp details of the stock lying in the Defendants premises. 6. The Court Receiver’s report indicates that the material found therein use two of the marks namely "NEOCILLIN" and "NEOCET". It is pertinent to note however that the Defendant does not deny having used the other marks either. That the Court Receiver did not find material using the other marks during the visit is, therefore, not relevant. 7. By the order dated 22nd December, 2005, I refrained from granting any ad-interim relief in : 3 : respect of the Defendants use of the mark "NEOCAF". It can be little doubt about the fact that the other word marks used by the Defendant are deceptively similar both visually and phonetically to the Plaintiffs marks. I also find such similar between the Plaintiffs mark "NEOCOD" and the Defendants mark "NEOCAF". The mere change in the last two letters would not make a difference. 8. I did not understand Mr.Tuzapurkar as having contended that the Plaintiff has any monopoly in the word "NEO". However, the marks must be judged as a whole. So Judged, there is definitely deceptive similarity between the Defendants word marks and the Plaintiffs word marks. 9. It was contended on the basis of an order and judgment dated 2nd March, 2007 in Notice of Motion No. 890 of 2005 in Suit No. 893 of 2005 that the Notice of Motion ought to be dismissed. 10. Firstly, the judgment is clearly distinguishable from the facts of the present case. In that case the learned Judge found that the Court Receiver had not found any products recently : 4 : manufactured "OR" being exported aboard. The learned Judge held that the position that had emerged in that case was that the Defendants were neither manufacturing the product nor exporting the same. The learned Judge therefore, found that the Plaintiffs has come with a false case. . In the present case, the report of the Court Receiver shows the considerable quantities of the infringing material being found. For instance, the Court Receiver found 9371 bottles of dry syrup, 11.5 kilogram of label-rolls with the word mark "NEOCILLIN", 6063 pieces of "NEOCET" tablets, 5402 pieces of "NEOCILLIN" and catch cartons and thousands of pieces of other products under the name "NEOCILLIN" or "NEOCET" including cartons, products and labels. It would not be unreasonable to presume that the labels are used for the products to be manufactured. 11. In fact, the Court Receiver wrongly did not take possession of products under the same word mark "NEOCILLIN" merely because they contained a suffix such as Kid, DT and 250. The word mark and the suffix were separated by a hyphen. : 5 : 12. The Plaintiffs have categorically alleged that these products were being exported. If these products were not being made for export, it was for Defendants to explain how these products have actually being sold or used. There is no such explanation. Thus, in the facts and circumstances in the present case, I see no reason to disbelieve the Plaintiffs version. Even if the products were not being exported but were being sold in the domestic market, it would make no difference. 13. Further the Appeal against the said order has been admitted and the ad-interim order granted therein has been continued by the Division Bench. 14. In the circumstances, the Plaintiff has made out a strong prima facie case of infringement and passing off. 15. The Notice of Motion is made absolute in terms of prayer cause (a) except the words which were also originally bracketed in red namely : "commercial and Accounting records including account books, stock registers, excise registers, export : 6 : invoices, customs records, etc’". The Notice of Motion is also made absolute in terms of prayer clauses (b) and (c). It is clarified that this order operates now also in respect of the word mark "NEOCAF". *******