Madras High Court
Sun Pharmaceuticals Industries ... vs M/S. Eyekare Kilitch Ltd on 6 July, 2012
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06/07/2012 CORAM THE HON'BLE MS.JUSTICE K.B.K.VASUKI O.A.No.428 of 2011 and O.A.No.14 of 2012 in C.S.No.334 of 2011 UNIMED TECHNOLOGIES LTD PART A DADHA NAGAR NEAR KOWL BAZARD POZHICHALUR PALLAVARAM CHENNAI 74 SUN PHARMACEUTICALS INDUSTRIES LIMITED CD PLOT NO.3 DOOR NO.8 OLD TOWER BLOCK ST NANDHANAM EXT CHENNAI 35 VS M/S. EYEKARE KILITCH LTD 37 UJAHAR INDUSTRIAL ESTATE W.T. PATIL MARG, DENOAR MUMBAI M/S. KILITCH DRUGS (INDIA) LTD . ORDER
While O.A.No.428 of 2011 is filed for temporary injunction restraining the defendants, its distributors, stockists, servants, agents, retailers, legal representatives or any other person claiming under them from in any manner manufacturing, selling, offering for sale, stocking, advertising directly or indirectly dealing in medicinal and pharmaceutical preparations under trademark TOBAEYE or any other mark deceptively similar to the applicants' trademark TOBA so as to pass off their preparations as and for the applicants' medicinal preparations or in any manner whatsoever, O.A.No.14 of 2012 is filed for temporary injunction restraining the defendants, its distributors, stockists, servants, agents, retailers, legal representatives or any other person claiming under them from in any manner infringing the plaintiffs' registered Trade Mark TOBA under No.663296 in class 5 by use of identical/deceptively similar trade mark TOBAEYE or any mark similar thereto.
2.The few facts which are relevant for the consideration of the case herein are :
(i) The first plaintiff Unimed Technologies Limited is a pharmaceutical company engaged in the manufacture of various drugs, ointments, formulations, pills, lotions, injunction, etc., and has been marketing their product under various brands by adopting various trade marks and the plaintiffs 1 & 2 entered into business arrangement and on the strength of such arrangement, the second plaintiff is involved in promotion, dealing and marketing of the medicinal preparation manufactured by the first plaintiff. According to the plaintiffs, the predecessor of the first plaintiff applied for and obtained registration of trade mark TOBA under No.663296 in class 5 and in view of various constitutional changes, the said trade mark would become the property of the first plaintiff and the first plaintiff also applied for registration of trade mark TOBA and the application is still pending. Pending the first plaintiffs application, the first plaintiff granted licence to the second plaintiff to use the registered trade mark TOBA under No.663296, as such, according to the plaintiffs 1 & 2, the first plaintiff is the proprietor of registered trade mark TOBA and the second plaintiff is the permitted user of the same trade mark TOBA.
(ii) The defendants 1 & 2 are also carrying on business in manufacture and merchants of various goods including various types of medicines and selling their medicinal preparations through out India under various brands and by adopting several trade marks and the defendants have been under the trade mark TOBAEYE dealing in identical goods i.e., ophthalmic preparation for treatment of eye infection. The plaintiffs come forward with the suit alleging that the defendants have been using deceptively identical trade mark in respect of identical goods amounting to infringement of the plaintiffs' registered trade mark TOBA. According to the plaintiffs, they are the prior adopter and continuous user of the trademark TOBA and the defendants have been copying the same trade mark TOBA by merely adding descriptive suffix EYE with dishonest intention to gain profit out of extensive goodwill and reputation of the plaintiffs without any right to do so and the adoption of the trade mark TOBAEYE, which is prima facie phonetically, visually and structurally similar to the plaintiffs trade mark TOBA, is in violation of the right vested upon the plaintiffs in respect of the trade mark TOBA and is calculated to deceive public with regard to the origin of manufacturer and the same amounts to clear case of infringement of the plaintiffs' registered trade mark and passing off the defendants product as and for the plaintiffs' preparation.
(iii) The same is seriously opposed by the defendants by denying any deceptive similarity between the two marks TOBA and TOBAEYE and by denying the sale and marketing of the defendants' product in the city of Chennai. According to the defendants, the defendants have been using the trade mark TOBAEYE since 2010 and they have also filed an application for registering the same and they have also filed objection against granting registration of the trade mark TOBA in favour of the plaintiffs and pending adjudication of the same, the suit is pre-matured one. It is contended by the learned counsel for the defendants that the defendants have established high reputation and goodwill as manufacture of medicinal goods and their medicinal products are sold through expensive advertisement, publicity and promotional campaigning by incurring huge expenditure and efforts. It is also their further case that the trade mark TOBA is generic in nature, as the same is derived from Molecule Tobramicin and the trade mark TOBA has become publici juris and no one can claim exclusive right over the same or over any other mark having TOBA either as prefix or suffix. It is also their case that though goods sold are identical in nature, they are admittedly being handled by skilled people and sold through and under due written prescription given by qualified medical practitioner and there is no chance of any confusion in either purchasing the medicine or using it for consumption. It is also their case that the trademark TOBA and TOBAEYE do have many dissimilarities, as such neither consumer nor traders will get any confusion with regard to the origin of the goods or regarding some connection between the plaintiffs and the defendants in the course of the business. It is also contended by the defendants that there are as many as 116 marks either starts with or containing the name TOBA as prefix.
3.Heard the rival submissions made on both sides.
4.As already referred to both the plaintiffs and defendants are dealing in Opthalmic preparation i.e., Tobramicin. The trade name used by the plaintiffs and defendants are TOBA and TOBAEYE. The plaintiffs have at pages 213 and 214 enclosed the scanned image of carton of the plaintiffs' TOBA product and the defendants TOBAEYE product. The cursory glance of the same would reveal that the trade mark used are TOBA and TOBAEYE and the goods sold are Tobramicin and the composition of the opthalmic preparation is the same and is sold in carton with different colour scheme. While TOBA bag is in the colour scheme of blue and white, the TOBAEYE bag is in the colour scheme of brown and white. The carton of TOBAEYE has another feature i.e., the symbol of eye within which EYEKARE/KILITCH are written and the letters EYEKARE are also written in the border coloured in brown. While the value of 5 ml TOBA is Rs.55/-, the value of 5ml TOBAEYE is Rs.49/-.
5.In an infringement action, the issue is whether the defendant is using a mark which is the same as or which is a colourable imitation of the plaintiffs trade mark. In an action for infringement of trade mark the burden is upon the plaintiff to prove the similarity and he is disentitled to any relief if the defendant establishes to the satisfaction of the Court that the use of the mark is not likely to cause confusion or is not likely to be taken as indicating a connection in the course of trade between the goods in respect of which the trade mark is registered. In a passing off action, the issue is whether the defendant is selling the goods so marked as by design or calculated to lead the public to believe that they are the plaintiffs' goods. The element of deception or confusion becomes irrelevant in this issue, as the same is implicitly inherent or presumed to be present. The Court must in the common case be satisfied that the defendants' conduct are calculated to pass off other goods as those of the plaintiffs, or, atleast to produce such confusion in the minds of the probable purchasers or customers or other persons with whom the plaintiffs have business relations and this is the foundation for further action.
6. In order to decide the question of deceptive similarity, the following factors must be considered:
(a)The nature of the marks i.e., whether the marks are word marks or label marks or composite marks i.e., both words and label marks;
(b)The decree of resembleness (sic) between the marks, phonetically similar and hence similar in idea;
(c)The nature of the goods in respect of which they are used as Trade Marks;
(d)The similarity in the nature, character and performance of the goods of the rival traders;
(e)The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a decree of care they are likely to exercise in purchasing and/or using the goods;
(f)The mode of purchasing the goods or placing orders for the goods; and
(g)Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case.
7.Our Supreme Court has in the judgment reported in AIR 1970 SC 2062 (F.Hoffimann-La Roche and Co. Ltd., Vs. Geoffrey Manners and Co. Private Limited) following the English judgment observed as follows; It is also important that the marks must be compared as a whole and 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.
8. As already referred to the plaintiffs and the defendants deal with medicinal and pharmaceutical preparations. It is well equally settled proposition of law that "public interest would support lesser decree of proof showing confusing similarity in the case of trade mark in respect of medicinal products as against other non-medicinal products since drugs are poison and not sweets. The tests of confusing similarity are modified, when the goods involved are medicinal products, because confusion among the products caused by similar marks could have disastrous effects and confusion between medicinal products may therefore be life threatening. While confusion in the case of non medicinal products, may only cause economic loss to the plaintiff, confusion between the two medicinal products may have disastrous effects on health and in some cases life itself, as such, stringent measures should be adopted, while applying the test to judge the possibility of confusion of one medicinal product for another by the consumer- 2001(1) CTMR 288 (SC) (Cadila Health Care Limited v. Cadila Pharmaceuticals Limited).
9. The defence that the drugs in question are scheduled drugs and are sold in hospitals under due prescription of qualified medical practitioner or trained pharmacist cannot hold good in all the cases.
10.In AIR 2001 SC 1952 (Cadila Health Care Limited Vs. Cadila Pharmaceuticals Ltd.,) the Supreme Court has observed that the possibility of confusion cannot be ruled out even in respect of the drug sold under prescription as the physician, who prescribe the same is, though trained, not infallible. It is further observed by the Supreme Court that in case of medicine, there can be no provision for mistake, since even a possibility of mistake may prove to be fatal and due to 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 decree of possibility of even accidental negligence, strict measures are required to be taken to prevent any confusion arising from similarity of marks among medicines.
11. The Division Bench of our High Court has also in the judgment reported in 2007 (1) MLJ 657 (Apex Laboratories Ltd., Chennai Vs. Zuventus Health Care Ltd.,) in paragraph No.5 held that when prescriptions are telephonic or handwriting, the chances of confusion or mistake cannot be ruled out, if the marks appear too much alike when handwritten or sound too much alike when pronounced.
12. In the case on hand, both medicinal preparations contain the prefix TOBA. It cannot be seriously disputed that the same is derived from Molecule Tobramicin, which is an antibacterial drug, as such it is generic in nature and publici juris. Similarly the mark EYE is, according to the defendants, direct descriptive of the goods i.e, eye drop, as such two marks TOBA and TOBAEYE having same prefix have by reasons of suffix in the defendant's trade mark phonetic and visual dissimilarities. The data base downloaded from the trade mark Registry website enclosed at pages 1 to 4 of the typed set of papers would also reveal that there are other products with prefix TOBA, like TOBAL, TOBAZON, TOBACIN, TOBAGRAM, TOBANEG, TOBASTOP, TOBADERM, TOBACIN-D, TOBAGAN AND TOBAMIST and all are dealing with goods/services of medicinal and pharmaceutical preparations and substances of both allopathy and ayurvethic. Further both the medicinal preparations are to be handled under due medical prescription given by trained and experienced medical doctors.
13.As rightly argued by the learned counsel for the respondents, the two words TOBA and TOBAEYE are phonetically dissimilar and visual impression are also different and hence, are hardly likely to cause deception in the mind of the common consumers and there is a remote chance of their being confused or misguided.
14.Both the plaintiffs and defendants have in support of their contentions regarding similarity or dissimilarities or possibility or non-possibility of deceptional confusion, cited the following authorities:
(i)The authorities cited on the side of the applicants and the rival trade marks dealt with in the same are as follows :
(a) 2011(4) CTC 417 (Hill Logistics Private Limited Vs. Ashok Leyland Limited) (LUXURA/LUXURIA)
(b) 2010 (43) PTC 483 (Mad.) (DB) (Sun Pharmaceutical Industries Ltd., Vs. Cadila Healthcare Ltd.)(VENIZ/VENZ)
(c) 2004 (3) SCC 90 (Midas Hygiene Industries (P) Ltd. and another Vs. Sudhir Bhatia and others) (LAXMAN REKHA/MAGIC LAXMAN REKHA)
(d)2002 (24) PTC 441 (Cal.) (Strassenburg Pharmaceuticals Ltd. Vs. Himalaya Drug Company and another) (EFACID/EFCID-CA)
(e)AIR 2001 SC 1952 (Cadila Health Care Limited Vs. Cadila Pharmaceuticals Ltd.,) (FALCIGO/FALCITAB)
(f) 1995 (33) DRJ 384 (DB) (Delhi High Court) (Hitachi Limited Vs. Ajay Kr.Agarwal and others) (HITACHI/HITAISHI)
(g) 1995 PTC 251 M/s.Ciba Geity Ltd and another V. M/s.Crosslands Research Laboratories Ltd., (EMULGEL/VOVERAN EMULGEL)
(h) AIR 1990 Delhi 19 (M/s.Hindustan Pencils Pvt. Ltd., Vs. M/s.India Stationery Products Co. and another) (Nataraj with the device of dancing Nataraj - Nataraj with the device of dancing Nataraj)
(i) AIR 1984 Del. 265 Glaxo Operations UK Ltd., (England) and others V. Samrat Pharmaceuticals, Kanpur (Glaxose-D /Glucon-D)
(ii)The authority cited on the side of the respondents are :
(a)2009 (2) LW 471 M/s.Orchid Chemicals & Pharmaceuticals Limited and another v. M/s.United Biotech Private Limited (ORZID/FORZID)
(b)2007 (1) MLJ 657 (DB)(Madras) (Apex Laboratories Ltd., Chennai Vs. Zuventus Health Care Limited) (ZINCOVIT/ ZINCONIA)
(c) 2006 (32) PTC 733 Delhi Astrazeneca UK ltd., and another V. Orchid Chemicals and Pharmaceuticals Ltd., (MERONEM/MEROMER)
(d) USV ltd v. Systopic laboratories ltd case CDJ 2003 MHC 27 (PIO/PIOZ)
(e)AIR 2001 SC 1952 Cadila Health Care Limited v. Cadila Pharmaceuticals Limited (FALCIGO/FALCITAB)
(f) 1998 (III) MLJ 214 (DB) (Madras High Court) (Indo-pharmaceutical Works Ltd., Mumbai Vs. Citadel Fine Pharmaceuticals Ltd., Madras) (ENERJEX/ENERJASE)
(g) AIR 1998 Delhi 126 (D.B.) SBL Ltd., V. The Himalaya Drug Co. (Liv-52/Liv-T)
(h)1997 PTC (17) 417 Cadila Laboratories Ltd v. Dabur India Limited (MEXATE/ZEXATE)
(i) 1994 Supp (3) SCC 215 J.R.Kapoor V. Micronix India (MICRONIX/MICROTEL)
(j)AIR 1987 Delhi 197 E.R.Squibb & Sons V. Curewell India Ltd., (Curechlor/Reclour)
(k)1979 RPC 355 (FIF/JIF)
(l)AIR 1977 Mad. 105 M.M.Pharmaceutical V. A.Wander (ASTHMIX/ASMAC)
(m)AIR 1975 Mad 74 Division Bench MM.P.Ltd V. OP.Corportion (Ortho-Gynol/Utogynol)
(n)1970 SC 2062 (F.Hoffimann-La Roche and Co. Ltd., Vs. Geoffrey Manners and Co. Private Limited) (PROTOVIT/ DROPOVIT)
(o)AIR 1965 Punjab 17 DB Stadmed Statemad Pvt. Ltd V. Hind chemical (ENTROZYME/ENTOZIME)
(p)1947 (64) RPC 125 Bayor products ltd V. A.Wander (BIASIL/ALACIL)
(q)Unreported common order of our High Court, dated 08.06.2009, in O.A.Nos.914 and 915 of 2008 in C.S.No.728 of 2008 (M/s. Nutrine Confectionery Co. Ltd. Vs. M/s.Icon Household Products Pvt. Ltd. and another) (LACTO - LACTO)
(r)Division Bench Bombay High Court in Appeal No.498 of 2002 in Ball Pharma ltd.., V. Wockhdardt ltd., - AZIWIN/AZIWOK
15. In all the cases, the Supreme Court and our High Court and other High Courts having found either phonetic or visual similarity in the mark with device or without device, granted the injunction order against the action for infringement and passing off.
16. In all the cases cited on the side of the applicant the Supreme Court, our High Court and other High Courts having found either phonetic or visual similarity in the rival trademarks with or without device and having found the plaintiffs prior use and exclusive right to use of the same both in relation to point of time and in relation to registration obtained and having found the malafide intention on the part of the defendant in dishonestly adopting similar or deceptively similar trade mark and the likelihood of the customers being misguided and misled granted the injunction order against act of infringement and passing off action.
17. Whereas the Supreme Court, the Division Bench and single judge of our High Court and other High Courts in the authorities cited on the side of the contesting respondent on the basis of the available materials have held that the same prefix or suffix of the rival trademarks are derived either from the name of the disease or component being used or the organ of the body associated with the disease and are generic and public juris and descriptive in nature and have no phonetical, visual or structure similarity.
18. The observation of the Supreme Court and our High Court in some of the cases cited above are usefully extracted below :
(i) The Supreme Court has in AIR 1970 SC 2062 F.Hoffimann case dealt with rival trade marks PROTOVIT/DROPOVIT. It is held that the last three letters VIT is the common abbreviation used in the pharmaceutical trade to denote vitamin preparations and even an average customer would know that in respect of vitamin the word VIT occurs in large number of trade marks and the letters D and P in DROPOVIT and the corresponding letters P and T in PROTOVIT cannot possibly be slurred over in pronunciation and the words are so dissimilar and that there is no reasonable probability of confusion between the word either from visual or phonetic point of view.
(ii) In the case reported in 1998 (3) MLJ 214 Indo pharmaceutical works ltd it is observed in paragraph No.43 that the two rival marks ENERJEX and ENERJASE contain the common feature ENERGY which is not only descriptive but also publici juris. Therefore, a customer will tend to ignore the common feature and will pay more attention to uncommon features i.e. JEX and JASE and the same cannot be said to have such phonetic similarity so as to make it objectionable and they are not going to create confusion.
(iii) In 2007 (1) MLJ 657 (Madras) (DB) case the rival marks are ZINCOVIT / ZINCONIA. The similar finding is rendered by our High Court that the words are phonically dissimilar and visual impression are different which is found so on the ground that both the medicinal preparations contain Zinc and therefore, the Zinc is common to the trade and it is publici juris and one cannot claim ownership over the said word and there is no deceptiveness or similarity in the same ZINCOVIT / ZINCONIA.
19. The Delhi High Court in LIPICOR case was of the view that both the drugs were lipid lowering drugs used in Cardiac diabetics. It is further held that the word LIPI is public juris and cannot be owned by anyone for use as Trademark and it is also found that the word LIPI is used in several products and hence injunction was not granted.
20. In so far as the rival trade marks AZIWIN/AZIWOK are concerned the Bombay High Court found that each of the word consist of six letters, the first three letters i.e, prefix AZI being common in both the words and is derived from generic name of the drug and the same is used by number of other companies in describe the products and no one can claim monopoly over the use of the said word. It is further held that the word AZI being the descriptive and having regard to the uncommon letters in these two words namely "WOK" and "WIN" which are visually and phonetically dissimilar that there is not even a remote chance of anyone being misguided between the two words.
21.Our High Court has in CDJ 2003 MHC 27 USV Ltd case held that as far as medical products are concerned the name may be based on three factors (a) Generic term or ailment as in the case of CALCI case; (b) it can refer to organ or part of the body as in LIV-52 or; (c) it may refer to ingredients of medicine as in PIO for Pioglitazone hydrochloride. Our High Court has further observed that the word PIO is indicative of basic ingredient and the applicant cannot claim ownership over the word PIO and PIO differs from the word PIOZ and it cannot be said that two words are similar and the applicant cannot object the use of word PIO. In the same judgment our High Court has referred to the other judgments wherein the rival trade marks dealt with are DROPVIT/PROTOVIT, NIMULID/REMULIDE, RECHLOR/CURECHLOR, DISPIRIN/MEDISPRIN, MEXATE/ZEXATE, SORBILENE/SOBITONE, LIPICARD/LIPICOR, MENSCURE/MENSUROL.
22. In Cadila Healthcare Ltd case (AIR 2001 SC 1952) also the Hon'ble Supreme Court while considering two trademarks FALCIO/FALCITAB except laying down certain principles dealing with the act of infringement and passing off not interfered with the order of refusal to grant injunction.
23. In 1997 PTC (17) 417 Cadila Laboratories Ltd v. Dabur India Limited case the two marks in question MEXATE/ZEXATE were held to be entirely dissimilar. It is found so by attaching more importance to the prefix than common suffix and the application was dismissed.
24. In 2006 (32) PTC 733 Delhi Astrazeneca UK ltd., and another V. Orchid Chemicals and Pharmaceuticals Ltd., the respondents have successfully defended in an action initiated by the UK company that the marks MERONEM/MEROMER are not similar and the word, MERO is taken from the basic drug MEROPENAM and generic and the composition are same and similar prefix was used for number of other preparations and there was no phonetic or deceptive similarity.
25. In 2009 (2) LW 471 M/s.Orchid Chemicals & Pharmaceuticals Limited the respondent M/s.Orchid Chemicals in the previous case cited as applicant initiated action against infringement of the trademark ORCID by using deceptively similar trademarks FORCID by the defendant. The Division Bench of our High Court has held that the product in question is pharmaceuticals preparation and is injectable formulation whose generic name is CEFTAZIDMINE and the drug in question is Schedule H drug available only on prescription as injectable formulation and prescribed in various dosage for patients of various age groups and there cannot be any confusion in the minds of the purchaser. It is held so by the Division Bench inspite of phonetical similarity between the two rival trademarks. The Division Bench has clarified that except phonetic similarity the applicant on other valid grounds had no right to seek for injunction.
26. In 1994 Supp 3 SCC 215 (J.R.Kapoor Vs. Micronix India) (MICRONIX / MICROTEL), it is observed by the Supreme Court that MICRO is the descriptive word of Micro Technology used for the production of many electronic goods which daily come to the market and no one can claim monopoly over the use of the said word and there was not even remotest chance of the buyers and users being misguided or confused.
27. In 1997 PTC 17 (DB) Delhi High Court (SBL Limited Vs. Himalaya Drug Company) the rival trade marks are (Liv.52 and LIV-T), it is held that the word 'Liv' is a generic term and publici juris and no one can claim exclusive right and the customers will not get confused by the common features and the descriptive features, but will pay more attention to the rival marks 52 and T which are phonetically not similar.
28. In all the cases cited above Supreme Court, our High Court and other High Courts have before refusing to grant injunction against any act of infringement and passing off, taken into consideration various factors such as generic and descriptive nature of the word; the difference and variation in the position of the words and the pronunciation, the manner in and the place at which it is sold, the type of customers using the goods and the trade dress used for selling the same etc.
29. In 2001 (1) CTMR 288 (SC) (Cadila Health Care Limited v. Cadila Pharmaceuticals Limited). The learned single judge refused to grant injunction on the ground of difference in appearance, formulation and price of two drugs and also on the fact that both could be sold only to hospitals and no chance of deception or confusion and the appeal was also dismissed confirming the order of the trial court. Though the Supreme Court did not interfere with the decisions of the courts below.
30. Our High Court in U.S.V. Limited V. Systopic Laboratories 2003 (27) PTC 203 is of the view that strict vigilance is not necessary if the medicinal products of both the parties are prescribed for the same disease and marketed in the same strength. It is observed by our High court that as far as medicinal products are concerned, the name may be based on three factors; (i) Generic factor or ailment as in the case of FALCI case, (ii) it can refer to organ or part of body as in Liv-52; (iii) it may refer to ingredients of medicines as in PIO for Pioglitazone Hydrochloride and in all the three cases, lesser decree of proof of more stringent is not necessary and public interest does not suffer. Our High Court is also pleased to observe that the adoption of the similar name by other company can be looked into for the purpose of making reference that the particular trade mark word per se is indicative of the basic ingredients and it cannot be said to belong to applicant alone.
31. Applying the same view of the Supreme Court as well as our High Court in the judgments cited on the side of the respondents, which are also cases in respect of rival trade marks used in medicinal and pharmaceutical preparations, this Court is compelled to arrive at a conclusion that in the instant case also the rival trade marks TOBA and TOBAEYE have the common prefix TOBA derived from molecule Tobramicin and are generic in nature and publici juris and EYE in TOBAEYE is descriptive in nature and the whole TOBAEYE is phonetically, visually and structurally dissimilar from that of the plaintiffs mark TOBA. Further both the goods are to be handled under due prescription given by the trained physician, as such the buyers and users will not be misguided or confused as observed by our High Court.
32. Thus for all the reasons stated above, this Court is of the considered view that the applicant has not made out any prima facie case for granting an order of injunction and the balance of convenience lies in favour of the respondents against granting an order injunction.
33. In the result, both the applications are dismissed.
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