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4. These submissions are stoutly challenged on behalf of the defendants in affidavit in reply made on behalf of the defendant No. 1 which is annexed with various documents. According to the defendants, the plaintiffs are guilty of suppressio veri and suggestio falsi due to the fact that they have come to the Court with a submission that they came across the product of defendant No. 2 AZIWIN in or about the 2nd week of February, 2002. However, in fact, the product is very much in existence since the year 1997 which can be seen from the documents produced on record and therefore it is submitted that all throughout the years the plaintiffs are well aware that the defendant No. 2 had introduced AZITHROMYCIN preparation as far back as in March 1997 under the trade mark AZIWIN which has now established substantial turnover/sales and goodwill in the market. According to the defendants, the defendant No. 2 is licenced under the Drugs & Cosmetics Act and Rules to manufacture various pharmaceutical products including AZIWIN and has obtained valid manufacturing licences from the Karnataka State Drug Controller as far back as 1996 and has from time to time renewed the same. Defendant No. 2 has further sought to make out a case that Azithromycin is marketed and sold in India by various pharmaceutical companies including the plaintiffs and the defendant No. 2 and has given a list of as many as 13 different names of various companies including the parties to the suit who are using the prefix "AZI" in this regard and, therefore, according to the defendants, it is clear that various brands of Azithromycin are marketed by different pharmaceutical companies using the common prefix "AZI" which is derived from the generic name of the drug. It is submitted that merely because the prefix of the brand name of Azithromycin manufactured and sold by the defendant No. 2 is common with prefix of the same drug manufactured and sold by the plaintiffs, the same does not create any confusion or deception in the minds of any of the consumers. It is further submitted that there is significant dissimilarity with the remaining part of the trade marks because the prefix "AZI" is descriptive of the generic drug and is common to the trade. It is further submitted that Azithromycin can only be ordered giving a written prescription and a chemist cannot supply the same without any such prescription, the relevant public to be considered are the specialists like doctors and pharmacists, and it is the case of the defendants that there cannot be and in fact there is no confusion in the minds of the doctors and pharmacists between the trade mark "AZIWIN" and "AZIWOK". It is certified by them and the record bears out the same fact. It is further case of the defendants that the brand name "AZIWIN" was coined by the defendant No. 2 by using the common prefix AZI denoting the generic names of the drug viz. AZITHROMYCIN. The suffix "WIN" was coined to denote "Winning over infection" which is an aggressive marketing slogan of defendant No. 2. In view of these aspects, it is submitted that there is absolutely no evidence of any confusion between the two trade marks. It is further submitted that the defendant No. 2 has also applied for registration of the said trade mark with the Registrar of Trade Marks under Application No. 802523 which is pending. Hence, it is the case of the defendant No. 2 that it has honestly, continuously and openly used and adopted the said trade mark "AZIWIN" and has been concurrently using it since 1997 and further the fact that the plaintiffs' mark "AZIWOK" is registered does not create any kind of exclusive right therein or in the mark "AZIWIN" being descriptive of the generic active ingredient. On this submission, it was further prayed that this is one of those matters which cannot be adjudicated at the ad interim stage unless all the evidence is recorded and the matter is finally adjudicated on merits and as such the Notice of Motion was sought to be dismissed.

If we are to be guided by these principles, I have no doubt whatsoever about the fact that the mark AZIWIN is deceptively similar to the trade mark of the plaintiff AZIWOK inspite of the fact that the common prefix AZI is obviously derived from the generic name of the drug Azithromycin.

6. Mr. Chagla, learned Counsel for the defendant No. 2, at this stage, invited my attention to the Supreme Court ruling in the case of J.R. Kapoor v. Micronix India, 1994 Supp. (3) S.C.C. 215. The dispute in that case was regarding the trade marks names MICROTEL & MICRONIX. The Apex Court, after considering all the relevant aspects and facets of the dispute came to the conclusion that there was not even the remotest chance of the buyers and users being misguided or confused by the two trade names and logos. Mr. Chagla argued that in this case also the word "Micro' in prefix was common and still it was found not to be disceptively similar. However, if we peruse the ratio of the said ruling in detail it is obvious that it was held that Micro-chip technology being the base of many of the products, the word 'micro' has much relevance in describing the products. Further, the word 'micro' being descriptive of the micro technology used for production of many electronic goods which daily come to the market, no one can claim monopoly over the use of the said word. Anyone producing any product with the use of micro-chip technology would be justified in using the said word as a prefix to his trade name. Therefore, on this basis, both the trade names were found to be not deceptively similar. However, the present case cannot be equated with the said micro technology case because the entire facts and circumstances involved therein were totally different and the word 'micro' was found to be descriptive of micro technobology. In the present case before me, what is important is not the fact that the word prefix AZI is derived from the generic name Azithromycin of the drug. But what is important for our present purpose is whether the trade mark AZIWIN of the defendants is deceptively similar with the plaintiff's mark AZIWOK or not, and the answer is in the affirmative.