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6. As per the Plaintiff, the Defendant has recently adopted a deceptively similar mark CLINOXID that is confusingly and deceptively similar to the Plaintiffs' registered trademark CLINDOXYL. The trademark adopted by the Defendant is also for an identical product that is skin ointment for treatment for acne.

7. The Plaintiffs claim to have issued cease and desist notice dated 14.08.2012 to the Defendant to cease and desist from using the said mark and to amicably settle the matter. The Defendant is claimed to have replied vide its reply dated 04.09.2012, contending that the rival marks were not deceptively similar, however it offered to amend its mark CLINOXID to CLINOXIDE to distinguish the same from the Plaintiffs' mark CLINDOXYL. The offer of the Defendant was not accepted by the Plaintiffs on the ground that as per them, the said change was merely cosmetic and the mark would continue to remain deceptively similar. As per the Plaintiffs, the Defendant vide its reply dated 26.12.2012 informed the Plaintiffs that it had discontinued the trademark CLINOXID, and would continue its mark CLINO XIDE, which has also been registered.

19. Learned senior counsel for the Plaintiffs submitted that the conduct of the Defendant is such that it adopts deceptively similar marks to already established marks. He relied on the list of oppositions cases filed against the Defendant by various entities for having adopted a deceptively similar mark to their trademarks. He further contended that the settlement talks were without prejudice and the offer of the Defendant to change the mark to CLINOXIDE was never accepted. Learned counsel for the Plaintiff contended that it has been held in the case of C LINIQUE L ABORATORIES LLC AND A NR. V S. G UFIC L IMITED AND A NR. 2009 (41) PTC 41(D EL), that suit is maintainable by a registered proprietor against another registered proprietor. He further submitted that as the user of the Plaintiffs is prior to the user of the Defendant, the Plaintiffs are also entitled to the relief of passing off.

22. Learned counsel for the Defendant submitted that the use of the Defendant was honest and concurrent. Further that the marks were not deceptively similar. He further submitted that the law is that the generic salt should be ignored while comparing the two marks i.e. if the mark has been coined by telescoping a part of the name of the salt, then that should be ignored while comparing the similarity between the two marks. He submitted that since the mark of the Plaintiffs and that of the Defendant are both coined by telescoping w ords from the generic salt, they cannot be held to be deceptively similar. Learned counsel for the Defendant further submitted that the Plaintiffs themselves were guilty of adopting the deceptively similar mark to the trademark INDOXY L and objections had been filed to the registration of the trademark of the Plaintiff CLINDOXYL. Learned counsel for the Defendant relied on the judgment in S CHERING C ORPORATION & O RS. V S. A LKEM L ABORATORIES L TD. 2010 (42) PTC 772 (D EL). (DB).

35. In view of the principles as enumerated above, the argument of the Defendant that it has adopted the mark by telescoping the prefix CLIN from the generic drug CLINDAMYCIN and suffix OXIDE from the generic drug BENZOYL PEROXIDE does not hold much water. Even as per the Defendant's understanding, marks adopted by telescoping letters from generic drugs are capable of acquiring distinctiveness and are capable of being used and registered as trademarks. The Defendant has itself applied for and obtained registration of its mark, which it claims to have adopted by telescoping letters from generic drugs. Further the court has to be very cautious in dealing with medicinal products. If rival deceptively similar marks are permitted to stay in the marker in respect of pharmaceutical products, there is likelihood of grave injury to the public. Where greater public interest is involved, the commercial rights of parties are to become subservient. If there is any likelihood of confusion in the two competing marks that have been applied to pharmaceutical products, the deceptively similar mark that had entered the market later in time has to go.