R.F. Nariman, J. - (1.) Leave granted.
(2.) The present Appeal arises from a Suit that was filed based on both infringement and passing off. However, at the time of the argument on the interim injunction before the learned Single Judge, the arguments were confined to passing off only.
(3.) The skeletal facts necessary to decide this Appeal are that the Plaintiff/Respondent has a trade mark called "CHYMORAL" and "CHYMORAL FORTE", which is a drug administered post-surgically for swellings that may arise and/or wounds that may arise. It is interesting to note that the expression "CHYMO" comes from the generic name of the drug which is CHYMOTRYPSIN-TRYPSIN. The learned Single Judge ultimately found, after a copious reference to the facts and case law, as follows:- "45. In the present case, I am not satisfied that any of these tests are met. Reputation as to source is not sufficiently demonstrated. The rival products have long co-existed and I cannot and will not presume misrepresentation by Wockhardt as to source, even assuming there is similarity. There is no explanation at all for Torrent's past conduct and the inaction with knowledge, or deemed knowledge, of Wockhardt's trade mark registration application, its advertisement and subsequent registration, with not a single objection from Torrent or is predecessor-in-title. There is no answer about the caveats or about the coexistence of other players in the market. There is simply no misrepresentation shown as required by law, at this prima facie stage. There being no prima facie case made out, I cannot grant the injunction. The balance of convenience seems to me to favour entirely the Defendants; after all, to the Plaintiff's knowledge, they have had their product in the market for a very long time, at the very least for five years, possibly more, and an injunction at this stage is far removed from the prima facie status quo that Wander v Antox tells us is the primary objective. There is no injury, let alone an irreparable one, to the Plaintiff that I can tell if an injunction is refused. It has not had one all this time while the Defendants' business has grown into crores. To grant the injunction would be unfairly monopolistic.";