Law:

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In their suit for permanent injunction, mandatory injunction, accounts and damages, plaintiffs Messrs Chas A- Mendoza have filed this application ( C.M.A. No.93/93) for issue of temporary injunction restraining the defendants from manufacturing, selling, offering for sale and advertising dental cream, under their infringing trade mark "Medicare". Defendants were also sought to be restrained from using the same get up, or label, wrapper which was being used by the plaintiffs in respect of their similar product under Trad Mark "Medicam".

Case of the plaintiffs was that they were carrying on with manufacture and sale of Dental Cream, for which they are using since 1989 "Medicam" an invented word as their trade mark. Plaintiffs have been marketing dental cream "Medicam" in an attractive packet having sky blue as dominant colour with blue and red colour scheme, design and get up. On the publicity of said goods under said mark, the plaintiffs have spent crores of rupees, as claimed. For protecting proprietary rights in the said mark, which has acquired great popularity. goodwill and reputation, the plaintiffs got it registered with Trade Marks Registry on 7-12-1992. It was added that the said mark due to its peculiar colour scheme, design and get up; had become distinctive of said product (dental cream) whose sales rose from over thirteen million in 1989 to over thirty-six million in 1991 and then fell to twenty-eight million in 1992. Plaintiffs alleged that the defendants No&1 and 2 jointly and severally and collusively started manufacturing and selling in the market their low and cheap quality dental cream (tooth paste) in confusingly similar type of packets bearing trade mark "Medicare". Such packets were said to be having same colour scheme, design and get up, as those used by the plaintiffs for their goods viz. tooth paste being marketed under mark "Medicam". Defendants Nos.1 and 2 were supplying their inferior quality tooth paste in confusingly similar packets to the defendant No3 for onward sale in the market. It is alleged that due to close similarity of infringing mark and packet, with mark and packet of the plaintiffs, there was great confusion and deception and this was 'causing irreparable damage to the plaintiffs' well-established goodwill and reputation. over and above this, the defendant No.1 moved the Trade Mark Registry for registration of Mark "Medicare" which would infringe mark of the plaintiffs. it was in these circumstances that the plaintiffs seek issue of interim injunction in the aforesaid terms, to be effective till decision of this suit. The application was contested by the defendants who filed counter-affidavit of Syed Tausif Ahmed defendant No.l. Case of the defendants was that they had adopted the Trade Mark "Medicare for their product since 1979 and were continuously marketing their product under said trade mark. It was stated in the counter-affidavit that Mark "Medicare" was different from Mark "Medicam" phonetically and visually. Defendants took plea that colour scheme, design and get up of their trade mark was quite different and distinguishable, from the trade mark of the plaintiffs and as such there was no question of deception or confusion being caused to the purchasers. Opposing the grant of interim injunction defendants averred that they were marketing their tooth paste and had established in market since 1979 whereas the plaintiff had adopted Trade Mark "Medicare* in 1989. It was also stated in the counteraffidavit that the real dispute was the plaintiffs and Messrs English Laboratories ( Pak. ) who were manufacturing tooth paste under the name and style of "Medipac.