B.P. Das, J. - (1.)This appeal is directed against the order dated 23.12.2003 passed by the District Judge. Cuttack in C.M.C. No. 126 of 2002, allowing the application filed by the plaintiff (present respondent No1) under Order 39. Rules 1 and 2 of the Code of Civil Procedure ('C.P.C.' in short), and temporarily restraining the defendants (the present appellants and respondent No. 2) from manufacturing and marketing their product 'HYCAL FORTE'.
(2.)The brief facts leading to the present appeal are that respondent No.1 as plaintiff has filed a suit being O.S.No.3 of 2002 praying, inter alia, for a permanent injunction restraining the defendants i.e. the present appellants and respondent No. 2. their servants, agents and assignees from passing off in any manner or assisting others to pass off medicine under the trade mark 'HYCAL FORTE' and for a preliminary decree for accounts of all profits made by the defendants in respect of its medicine sold under the aforesaid trade mark and also for a declaration that the plaintiff is exclusively entitled to use the trade mark 'H1CAL' to the exclusion of others. Along with the plaint, the plaintiff-petitioner also filed an application under Order 39, Rules 1 and 2, C.P.C., registered as C.M.C. No. 126 of 2002, with the prayer for temporary injunction restraining the defendant-opposite parties from manufacturing and marketing their product 'HYCAL FORTE'. The case of the plaintiff-petitioner (respondent No.1) is that the petitioner has been marketing a drug by adopting the trade mark 'HICAL' since around 1988 and selling and distributing the same as well as other medicines through C. & F. Agents within the State of Orissa as well as other States. The Medicine 'HICAL' is very popular and has acquired reputation and goodwill in the pharmaceutical trade. During the period it also applied for registration of its trade mark 'HICAL' which is pending. In or about October, 2000 the defendant-O.Ps. (appellants) started manufacturing certain tablet in shape of medicine using deceptively the similar trademark 'HYCAL FORTE' and marketed the same in different outlets at Cuttack as well as other places in the State of Orissa. Plaintiff-respondent No.1 issued a Cease and Desist Notice on 23.11.2000 to the defendant-appellants to stop marketing and manufacturing their such deceptive product 'HYCAL FORTE' but the latter did not desist from their illegal act. Thereafter plaintiff-respondent No.l filed the aforesaid suit along with an application under Order 39, Rules 1 and 2 with the prayer as indicated above.
(3.)The learned District Judge, Cuttack, after hearing both the parties allowed the afore-said application holding that there was a prima facie case available in favour of the plaintiff-petitioners as the drug 'HICAL' was a registered trade mark granted in favour of the petitioner earlier to 'HYCAL FORTE' of the defendant-O.Ps, and as the O.Ps were guilty of passing off, the petitioner had a good prima facie case in his favour. As regards irreparable loss, the learned District Judge held that as the marketing of the medicine 'HYCAL FORTE' was being done despite notice of Cease and Desist issued to O.Ps. 1 and 2, in view of passing off it was likely to cause great loss in the business of the product 'HICAL' manufactured and marketed by the plaintiff- petitioner (respondent No.1). The learned District Judge accordingly allowed the misc. case and temporarily restrained the defendant-O.Ps. from manufacturing and marketing their product, namely. 'HYCAL FORTE'. The aforesaid order of the learned District Judge is under challenge in this proceeding.