UNIMED TECHNOLOGIES LTD. Vs. EYEKARE KILITCH LTD.

JUDGEMENT

(1.) 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. The few facts which are relevant for the consideration of the case herein are:

(2.) Heard the rival submissions made on both sides.

(3.) 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 5 ml. TOBAEYE is Rs. 49/-