Judgment :- This appeal is filed against the order of the District Court, Mavelikara, in I.A.No.685 of 2003 in O.S.No.1 of 2003. The appellant filed the suit for injunction restraining the defendant from passing off services in the name deceptively similar to that of the plaintiff’s name. The appellant also filed an application for interim injunction which was dismissed by the trial court and which order is under challenge in this appeal. 2. The plaintiff’s case is that the plaintiff-company incorporated in the year 1990 is doing business in the nature of medical diagnosis and scanning in the trade name ‘Medivision’ from 1993 onwards. The plaintiff-company has earned good will and reputation in the field of medical diagnosis and scanning and the public has acquainted with the name ‘MEDIVISION’ with that of the plaintiff. The plaintiff has its head office at Kochi and has got a branch at Mavelikara. The defendants with a mala fide intention started an institution at Mavelikara in the name ‘MEDIVISION IND’ with the sole intention to tarnish the reputation of the plaintiff-company. Second defendant was an employee of the plaintiff and he left the establishment in October, 2003 and according to the plaintiffs, 2nd defendant is the person behind the 1st defendant in establishing ‘MEDIVISION IND’ at Mavelikara in 2003. The plaintiff’s application for registration of the trade name is pending before the Registrar of Trade Marks, Chennai. The plaintiff has invested large amounts for advertisement of the name ‘MEDIVISION’. The use of ‘MEDIVISION IND’ by the defendant which is deceptively similar to the plaintiff-company’s name clearly shows the mala fide intention in passing off the plaintiff’s service as that of the defendant. On the above allegations, the appellant prayed for an interim injunction restraining the defendant from passing of services in the name deceptively similar to that of the plaintiff’s name. 3. In the counter-affidavit filed by the third defendant, it is contended that the petitioner has no exclusive right over the word ‘MEDIVISION’. It is used by thousands of companies all over the world to denote goods and services relating to scanning and endoscopy. It can be seen from a search in the internet like YAHOO and GOOGLE. The search in GOOGLE shows 3910 such sites and YAHOO shows 2650 sites. The petitioner also used a Head and Comb device as its logo. It is used by thousands of companies all over the world to denote goods and services relating to scanning and endoscopy. It can be seen from a search in the internet like YAHOO and GOOGLE. The search in GOOGLE shows 3910 such sites and YAHOO shows 2650 sites. The petitioner also used a Head and Comb device as its logo. The petitioner did not obtain any reputation which has together symbolized in the trademark on which the petitioner claims right. The respondent has also applied for trademark registration for ‘MEDIVISION’ symbolized with a distinctive logo which is different from that of the petitioner. The respondents were using the name ‘MEDIVISION’ since 1998. One of the partners of the firm Lekshmi owned a business of clinical laboratory and scanning under the trade name MEDIVISION DIAGNOSTIC RESEARCH CENTRE at Karunagappally. Thereafter, the 3rd defendant, Lekshmi and a few others formed the present partnership and got it registered under the Partnership Act. The name ‘MEDIVISION’ was given to the Research Centre at Karunagappally by the Directors of the Company. It is only when the respondent decided to expand the business by using the name MEDIVISION that the plaintiff thought of filing the suit. The petitioner-company has acquiesced in the use of the word MEDIVISION by the respondents. The respondents also contended that the suit is not maintainable. The petitioner has not made out a prima facie case of exclusive use of the word MEDIVISION. The 3rd respondent also contended that the suit is bad for misjoinder of parties and non-joinder of parties. It is also contended that if more than one entity can use the trademark for a considerable time, law recognizes the use of both the parties or all the parties on the basis of honest concurrent user as stated in S.12 of The Trade Mark Act. It is seen that the petitioner had earlier applied for registration of the trade mark which must have been refused on the basis of indistinctiveness of the trademark. 4. After marking the documents on both sides and hearing the learned counsel for the petitioner and the respondents, the trial court dismissed the application. The trial court also appointed an Advocate Commissioner and he submitted Ext.C1 report. 4. After marking the documents on both sides and hearing the learned counsel for the petitioner and the respondents, the trial court dismissed the application. The trial court also appointed an Advocate Commissioner and he submitted Ext.C1 report. The trial court found that the documents produced by the respondents will show that several medivision sites are found in the internet like Yahoo and Google and several applications are pending before the Registrar, Trade Mark of India, Chennai, for the name of Medivision. The trial court found that in such a situation the honest concurrent use of the name Medivision and Medivision Ind can be decided subject to the decision of the Registrar of Trade Mark. It was therefore found that the balance of convenience is not in favour of the plaintiff. According to the trial court, the 3rd counter-petitioner applied for registration earlier. The contention that the defendants are using the name deceptively similar to that of the plaintiff which is confusing the public is unsustainable. Since it was found that there was no prima facie case made out and balance of convenience is not in favour of the petitioner, the petition was dismissed by the trial court. 5. In this appeal, it is contended that the court below should have held that the plaintiff/appellant has made out a prima facie case and if no injunction was granted, it will result in irreparable injury. It is contended that the trial court should have found that the plaintiff started the business in the name “MEDIVISION” in 1993 and the respondent started the business at Karunagappally in 1998. According to the appellant, it was on the basis of some understanding between the two parties. But when the respondent stated a unit at Mavelikkara, where the appellant has another unit in the name “MEDIVISION”, the suit was filed. The various exhibits produced would show that the petitioner had advertised MEDIVISION in the newspapers and the existence of the petitioner’s business from 1993 onwards is established. It is also contended that the decision of the trial court is against the settled law enunciated by the Supreme Court and various High Courts. 6. The learned counsel for the appellant placed in the forefront of his argument the decision of the Supreme Court in Laxmikant V. Patel v. Chetanbhat Shah (AIR 2002 SC 275). It is also contended that the decision of the trial court is against the settled law enunciated by the Supreme Court and various High Courts. 6. The learned counsel for the appellant placed in the forefront of his argument the decision of the Supreme Court in Laxmikant V. Patel v. Chetanbhat Shah (AIR 2002 SC 275). It is held by the Apex Court that if the trade name is used earlier and the plaintiff has established a reputation in that name, the attempt of the defendant to start a business in the same trade name with minor variations cannot be allowed and if the trial court or the appellate court exercised jurisdiction without keeping the mind the relevant settled principles of law in granting or refusing injunction, the Supreme court found it just and proper to grant an injunction. In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd (2001 (5) SCC 73), the Supreme Court stated that while deciding a case involving passing off what is to be considered is the similarity between the competing marks. 7. In Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. (2002 (2) SCC 147), the Supreme Court stated that while considering the question whether an interim injunction in a suit for passing off is to be granted or not the court has to decide whether there is likelihood of deception or confusion. In that case, there was the additional fact that the defendant had not yet started the new business and the court had only ordered to maintain status quo. In National Garments v. National Apparels (AIR 1990 Kerala 119), Radhakrishna Menon, J. stated that even if the chances of success is only 20% an interim injunction should be granted. A Division Bench of this Court in A.C. Krishnan v. Nambisan’s Dairy Pvt. Ltd. (1997 (1) KLT 163) has exhaustively discussed the case law till then and held that when the defendant’s dairy is called G.K. Nambisan’s dairy it cannot defend a passing off action where the plaintiff Nambisan’s dairy was established and had earned a reputation for several years. That was a case where the suit was decreed after full trial and the appeal was considered on merit. That was a case where the suit was decreed after full trial and the appeal was considered on merit. On the basis of the above decisions and the statutory provisions, Shri. Harikrishnan, the learned counsel for the appellant contended that the trial court was not justified in dismissing the application for injunction pending suit. 8. Shri. John Mathew, the learned counsel for the respondents contended that the word “medivision” has no distinctive character and it is in general use all over the world and in such a case no right can be claimed by the plaintiff exclusively and it is an absolute ground to deny registration of trade mark under S.9 of the Trade Marks Act. He also contended that under S.12 of the Act, when there is honest concurrent use registration of same trademark for more than one person is also possible. The further contention is that in Karunagappally, the defendants had started a scan centre with the same name and the plaintiff had no objection for that. It was only when the defendants started a unit at Mavelikkara that the plaintiff raised objection. It is therefore contended that where there is delay in seeking remedy the court will decline the relief. This is met by the counsel for the appellant saying that so far as Karunnagappally center is concerned, it was with some understanding between the parties that center was run and whereas the plaintiff has got a unit at Mavelikkara another unit with the same name or deceptive name cannot be allowed to exist. The contention of the respondents is that the plaintiff has acquiesced in the defendants establishing a Medivision Ind at Karunnagappally and therefore it is precluded from questioning when it is started at Mavelikkara. The learned counsel for the respondents relied on Kerly on Trademarks, page 308, and contended that if the defendants showed a prima facie case of concurrent right the court will not interfere by interlocutory injunction. The learned counsel for the respondents relied on Kerly on Trademarks, page 308, and contended that if the defendants showed a prima facie case of concurrent right the court will not interfere by interlocutory injunction. In Kali Aerated Water Works, Tiruchirappalli v. Rashidd and Others (AIR 1989 Madras 9), a Division Bench of the Madras High Court has held that merely because the plaintiffs have not established an exclusive right to use the trade name or because of the fact that there is simultaneous and concurrent use of the same name by other persons as referred to in that judgment, it cannot be said that the public would not have associated the trade with that of the plaintiff. 9. The existence of two scan centers in the same place with the same or more of less same name will lead to “unfair trading” or “unlawful competition” which is also a relevant factor as noticed in Bollinger, J. v. Costa Brava Wine Co. Ltd. (1960 RPC 16). The five elements of a passing off test as noticed by Lord Diplock in Erven Warnink v. Townend & Sons (1979) 2 All. ER 927) are as follows: (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence), and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought. This is followed by a Division Bench of the Delhi High Court in B.K. Engineering Co. v. U.B.H.I. Enterprises (AIR 1985 Delhi 210). In that case, the defendant started manufacturing of Cycle Bells with mark “B.K.81” whereas the plaintiff had already got a reputation of producing Cycle Bells with a mark “B.K.”. It was held that it was a fit case for temporary injunction. 10. The learned counsel for the respondents relied on the decision of the Supreme Court in Power Control Appliances & Others v. Sumeet Machines Pvt. Ltd. (1995 PTC 16) to contend for the position that where there is honest concurrent user and acquiescence no injunction can be granted. It was held that it was a fit case for temporary injunction. 10. The learned counsel for the respondents relied on the decision of the Supreme Court in Power Control Appliances & Others v. Sumeet Machines Pvt. Ltd. (1995 PTC 16) to contend for the position that where there is honest concurrent user and acquiescence no injunction can be granted. It was in the peculiar facts and circumstances of that case where the plaintiff and defendant were members of the same family and there was active encouragement of the business of the defendant by that of the plaintiff that the Supreme court upheld the denial of injunction pending suit. In similar circumstances, the Madras High Court also declined to grant injunction in M/s. K.P. Namboodiri’s Dantadhavanachoornam v. Sreedevi Antharjanam Kulathiupulli Mana (1990 PTC 223). 11. According to the learned counsel for the respondents, the case on hand is similar to the case “oven chips” which was the subject-matter of dispute in McCain International Limited v. Country Fair Foods Limited and Another (1982 PTC 156). In that case it was not mere “oven chips” that was the brand name. The plaintiff’s product was McCain oven Chips whereas the defendants called their product as Country Fair Oven Chips and Birds Eye Oven Chips. The Court of Appeal held as follows: “A descriptive name does not indicate the source of the goods, but the nature of the goods whereas the fancy name is an indication of a singe source and that is why it is impossible for a defendant to appropriate the same fancy name without committing the tort of passing off.” In E. Merck Aktiengesellschaft v. Schering Limited (PTC (Suppl) (1) 640 (Bombay), the High Court of Bombay was concerned with the case of concurrent user. The clear finding in that case was that even before the petitioner marketed Merckozone in India in 1960 the respondent had sold Neo Mercazole in 1954 and there could not have been an intention to deceive the petitioner. Though there is a case of acquiescence on account of the recognition of the unit at Karunagappally it cannot be prima facie accepted as it is said that was on the basis of an understanding between the parties. This has to be further examined at the stage of evidence. Though there is a case of acquiescence on account of the recognition of the unit at Karunagappally it cannot be prima facie accepted as it is said that was on the basis of an understanding between the parties. This has to be further examined at the stage of evidence. Similarly the contention that the name Medivision is now available and is in use in various places as can be seen from a search of Yahoo and Goglee and that it is a public name is also prima facie unacceptable as the relief now sought is with respect of Muvattupuzha Branch. In Cadila Laboratories v. Kamat Atul & Co. (ILR 1990 Karnataka 2576), the plaintiff’s user was confined to five states and injunction was limited to hose states. Therefore for the purpose of this case, we are only concerned with the defendants establishing a new scan center at Muvattupuzha and there cannot co-exist two scan centers with the more or less the same name. The prior use of the name by the plaintiff from 1993 onwards is well established by various documents produced by the plaintiff and marked as Ext.A-series and there is no serious dispute about it. 12. According to the trial court the applications for trade mark by both parties are pending before the Registrar of Trade marks and hence the claim of the petitioner that balance of convenience is in his favour cannot be accepted. It cannot be disputed that the trial court has gone wrong in such an approach as the grievance of the plaintiff is one of passing off and S.27(2) of the Trade Marks Act, 1999, saves the right against passing off. As observed by the Supreme court in Laxmikant V. Patel v. Chetanbhat Shah (AIR 2002 SC 275), where the court does not apply its mind to the relevant settled principles and the discretion exercised is neither reasonable nor judicious, the appellate court can interfere. 13. The respondents started the center at Muvattupuzha just prior to the filing of the suit and there is no delay on the part of the plaintiff in instituting the suit. 13. The respondents started the center at Muvattupuzha just prior to the filing of the suit and there is no delay on the part of the plaintiff in instituting the suit. Since the reason stated by the trial court for denying injunction is that the parties can settle their disputes before the Registrar of Trademarks and it is not a good reason to deny injunction in a passing off action, the order of the trial court is set aside and I.A.No.685 of 2003 is allowed. The respondents are restrained from using the name Medivision or Medivision Ind and the logo used by the petitioner during the pendency of the suit. The respondents shall make necessary changes in the name within three weeks from today.