Deceptive similarity in pharmaceutical marks depends on overall impression; differing prefixes defeated confusion and injunction was refused.

Deceptive similarity under Section 2(d) of the Trade and Merchandise Marks Act, 1958 turns on whether the rival mark so nearly resembles the registered mark as to be likely to deceive or confuse. In assessing that question, the nature of the marks, the goods, the class of purchasers, the mode of purchase, and surrounding circumstances are relevant. Applied to prescription cancer medicines supplied as Schedule H drugs, the common suffix "exate" was treated as derived from the active ingredient and not monopolisable. The differing initial syllables and distinct phonetic and visual impressions meant the marks were not deceptively similar, so temporary injunction was not warranted.

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Issues: Whether the defendant's mark 'zexate' was deceptively similar to the plaintiffs' registered mark 'Mexate' so as to justify grant of temporary injunction.

Analysis: Section 2(d) of the Trade and Merchandise Marks Act, 1958 governs deceptive similarity by asking whether the rival mark so nearly resembles the other mark as to be likely to deceive or cause confusion. In assessing similarity, the nature of the marks, the degree of resemblance, the nature of the goods, the class of purchasers, the mode of purchase, and surrounding circumstances are relevant. The products were medicines for cancer treatment, both being Schedule H drugs supplied on prescription and not over the counter. The common suffix 'exate' was derived from the active ingredient and could not be monopolised. The opening syllables were materially different, one beginning with 'M' and the other with 'Z', and the two marks did not create the same phonetic or visual impression.

Conclusion: The marks were not deceptively similar and no temporary injunction was warranted.

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