JUDGMENT : M.R. Shah, J. Present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred by the appellants herein - original plaintiffs (herein after referred to as 'the plaintiffs' for short) to quash and set aside impugned order dated 14.07.2009 passed by the learned Judge, City Civil Court, Ahmedabad below Exh.6 and 7 in Civil Suit No. 1148 of 2009 by which the learned Chamber Judge of the City Civil Court, Ahmedabad has rejected the said applications submitted by the appellants herein - original plaintiffs for interim injunction restraining respondents herein - original defendants (herein after referred to as 'the defendants' for short) from using the name Nirman Foundation Charitable Trust and/or name Nirman Preprimary School and/or Nirman Primary School and/or Nirman High School and/or using any name/trading style and/or mark containing the trademark/words Nirma/Nirman and/or any other identical or deceptively similar word/mark and thereby restrain them from advertising, printing, publishing and using the words Nirma/Nirman and/or any other identical and/or deceptively similar words/marks Nirma/Nirman in respect of their goods and services including the website and thus, restrain them from committing an act of passing off of their business and services as and for the business and services of the plaintiffs. 2. Original plaintiffs - Nirma Chemical Works Pvt. Ltd. has instituted Civil Suit No.1148 of 2009 in the City Civil Court, Ahmedabad for the following reliefs : (a) The defendants, their trustees, office bearers, servants, agents and other persons connected therewith be restrained by an order of permanent injunction from using the name Nirman Foundation Charitable Trust and/or name Nirman Preprimary School and/or Nirman Primary School and/or Nirman High School and/or using any name/trading style and/or mark containing the trademark/words NIRMA/Nirman and/or any other identical or deceptively similar word/mark and thereby restrain them from committing an act of infringement of the plaintiff's registered trademark Nirma/Nirman. (b) The defendants, their trustees, office bearers, servants, agents and other persons connected therewith be restrained by an order of permanent injunction from using the name Nirman Foundation Charitable Trust and/or name Nirman Preprimary School and/or Nirman Primary School and/or Nirman High School and/or using any name/trading style and/or mark containing the trademark/words Nirma/Nirman and/or any other identical or deceptively similar word/mark and thereby restrain them from printing, publishing, using their website name and business style on their literatures, advertisement materials, stationary materials, admission forms and other advertisement materials of whatsoever nature containing the mark and/or names Nirma/Nirman which is substantial and material reproduction of Nirma/Nirman and thereby committing an infringement of the copyright of the plaintiffs. (c) The defendants, their trustees, office bearers, servants, agents and other persons connected therewith be restrained by an order of permanent injunction from using the name Nirman Foundation Charitable Trust and/or name Nirman Preprimary School and/or Nirman Primary School and/or Nirman High School and/or using any name/trading style and/or mark containing the trademark/words Nirma/Nirman and/or any other identical or deceptively similar word/mark and thereby restrain them from advertising, printing, publishing and using the words Nirma/Nirman and/or any other identical and/or deceptively similar words/marks Nirma/Nirman in respect of their goods and services including the website and thus, restrain them from committing an act of passing off of their business and services as and for the business and services of the plaintiffs. (d) The defendants, their trustees, office bearers, servants, agents and other persons connected therewith be directed to handover all the blocks, dyes, stationary material, advertisement materials and all such other literatures containing or consisting the words Nirma/Nirman for destruction to the plaintiff's. (e) Plaintiffs submit that the plaintiff is not in a position to assess the damage at this stage caused to the plaintiffs by the illegal and unlawful act of the defendants. Therefore, the plaintiffs will later on produce necessary documents for the damage caused by the unlawful acts of the defendants. Hence, at this stage, plaintiffs assess a nominal damage of Rs. - and reserve the right to add, amend or alter the amount of such damage after verifying all the activities causing damage to plaintiffs by the unlawful act of the defendants. 3. Hence, at this stage, plaintiffs assess a nominal damage of Rs. - and reserve the right to add, amend or alter the amount of such damage after verifying all the activities causing damage to plaintiffs by the unlawful act of the defendants. 3. Thus aforesaid Civil Suit has been instituted by the plaintiffs for infringement of registered trade mark Nirma/Nirman and also for infringement of copy rights of the plaintiffs and also for passing of and for permanent injunction restraining defendants, their agents and servants from using the word Nirman. 3.1. It the case of the plaintiffs and so pleaded in the plaint that plaintiff no.1 is owner of various trademarks including the well known trademarks Nirma And Nima. That the trademarks of plaintiff no.1 have been vested in plaintiff no.2 by virtue of the order of the Hon'ble High Court of Gujarat. Amongst the various objects for the business of plaintiff no.2, they are also in the field of providing and imparting education at school and college levels and also management, technical and legal education. It is the case on behalf of the plaintiffs that defendant no.3 is a trust and also imparts education to the children at the preprimary and primary school levels and right from the beginning, as per the knowledge of the plaintiff, defendant no.3 is doing the said educational activities under the name 'H.B.Kapadia School/High school'. It is the case of the plaintiffs that the mark 'H.B.Kapadia' is the only mark being used by defendant no.3 either by itself or by the institution/trust being run/controlled by itself. However, recently defendant no.3 has surreptitiously and malafidely started using the name/mark 'Nirman' through defendant no.1 and 2. It is alleged that reason for such dishonest adoption is because of tremendous reputation acquired by the plaintiffs in the education field since more than decades. It is the case on behalf of the plaintiffs that the Nirma University' and trademark NIRMA has acquired world class reputation in the field of education and therefore, just to grab that goodwill and reputation defendants are tempted to have all of a sudden changed their name/mark which is similar and/or deceptively similar to that of the plaintiff. 3.2. It is the case on behalf of the plaintiffs that the Nirma University' and trademark NIRMA has acquired world class reputation in the field of education and therefore, just to grab that goodwill and reputation defendants are tempted to have all of a sudden changed their name/mark which is similar and/or deceptively similar to that of the plaintiff. 3.2. It is the case on behalf of the plaintiffs that the trademark Nirma is coined and registered since many years under registration no.346840 dated 08.03.1979 and the said trademark Nirma is being used since the year 1969 in respect of the goods falling under class 03. That the word Nirma has been invented and coined by the predecessor of the plaintiff companies from the name of daughter i.e. NIRUPAMA of their promoter Director Shri Karshanbhai Patel and the word Nirma is distinct word having no dictionary meaning. It is also case on behalf of the plaintiffs that another trademark NIMA is also registered under registration no.396185B in respect of the goods in class - 03 and is used since the year 1982. That trademark NIRMA is registered in all classes from class 01 to 42. The trademark NIMA has been registered in all classes. That Nirma Chemical Works a partnership firm was registered owner of trademark under the name and style of NIRMA and NIMA which were subsequently assigned to Nirma Chemicals Works Pvt. Ltd and thereafter to Nirma Chemical Works Ltd. and thereafter, said trademarks have been assigned to Nirma Industries Limited. It is the case on behalf of the plaintiffs that pursuant to the scheme of arrangement between Nirma Industries Ltd. (las assignee) with Nirma Limited, the aforesaid trademarks, brand names have been vested to Nirma Limited vide order of the Hon'ble High Court of Gujarat. 3.3. It is also averred by the plaintiffs in the plaint that trademark NIRMA is the house mark and trade name of plaintiff no.1 - Company and under the Nirma group various companies and trusts using the titles Nirma, Nima and/or other marks which unfailingly leads and makes the people to believe and understand the connection of such title/mark with plaintiff - a Corporate house. 3.4. 3.4. It is also further averred in the plaint that trademarks NIRMA and NIMA have excellent reputation and goodwill because of which plaintiff company have attained highest level of accreditation and has earned for themselves national and international fame and reputation. In respect of claim on behalf of the plaintiffs that trademarks NIRMA and NIMA have got excellent reputation and goodwill, plaintiffs have provided following details in the plaint: (i) Nirma and Nima are coined and invented words by the plaintiffs. (ii) Nirma is being continuously, openly, extensively used since 1969. (iii) Nima is being adopted and used since 1983. (iv) Nirma and Nima marks have achieved a status of well known mark. (v) Nirma is registered as a trademark in all classes from 142 and registration dates way back the year 1974 under the Trademarks Act. (vi) Nima is registered in all classes from 142 as trademarks except class 41 application, pending for registration. (vii) Nirma is largest player of Indian Detergent Market with a share of 38% and second largest toilet soap marketer of the country with a share of 20%. (viii) The plaintiffs has acquired a company 'Searles Vally Minerals" in U.S.A. And by this acquisition the plaintiffs has become one of the top seven producers of Soda Ash in the world. (ix) Host of products are being manufactured under the Trademarks Nirma/Nima in various classes. (x) Nirma is one of the largest selling single detergent brand in the world. (xi) Nirma/Nima products are sold through more than 2 million retailers and reached more than 400 million consumers. (xii) Nima is ranked 31st among top 100 FMCG brands of India (AC Nelson Retail Audit Brand Equity, April 21st 2004). (xiii) AC Nelson Retail Audit (2002 - 03) ranked Nirma as 9th largest consumer brand in India. (xiv) Nirma is a super brand of India. (xv) Nirma Is registered in about 100 countries across the globe and applications are pending in some countries for registration. (xvi) Nirma is registered in about 96 countries across the globe and applications are pending in few countries for registration. (xvii) Nirma is also the part of the corporate name i.e. Nirma limited which is registered under the provisions of the Companies Act, 1956 since 1980 and its share are listed at National Stock Exchange (NSE) and Bombay Stock Exchange (BSE). (xvii) Nirma is also the part of the corporate name i.e. Nirma limited which is registered under the provisions of the Companies Act, 1956 since 1980 and its share are listed at National Stock Exchange (NSE) and Bombay Stock Exchange (BSE). (xviii) Nirma is registered in various domains such as, .co.in, .firm.in, .gen.in, .in, .indi.in, .net.in, .org.in (xix) There are also companies registered with the corporate name Nima. (xx) The plaintiffs being Public Limited companies, their shares are listed at the Stock exchange by the name NIRMA every day in various newspaper. (xxi) Nirma University is a educational institution and is registered in various domains as under : nirmauniversity.co.in, nirmauniversity.firm.in, nirmauniversity.gen.in, nirmauniversity.in, nirmauniversity.ind.in, nirmauniversity.net.in, nirmauniversity.org.in. The above websites, use of mark in different ways establish association in the minds of consumers, traders and general public, students, parents to the indication or origin of the plaintiffs and/or someway connected with the plaintiffs only and none else. 3.5. It is also case on behalf of the plaintiffs that word Nirman has been registered as a trademark in class 01 under registration no.1510037 on 04.12.2006 in the name of Nirman Soaps and Detergents Pvt. Ltd. and said company is incorporated under the Companies Act, 1956 on 12.11.1991. Hence, its adoption of the word/mark Nirman is since 1991. That the registration applications for the word Nirman has been submitted under classes 06,09 and 19. It is therefore, submitted that the word Nirman as a trademark and as a name of the company/business under the Nirma Group is closely associated and interwoven with the business activities of Nirma Group including educational activities. 3.6. It is further averred in the plaint that the trademarks NIRMA and NIMA have enjoyed very good reputation and goodwill due to the various products being sold under these trademarks which have earned lot of consumer acceptability and consumer satisfaction. The word NIMA is associated with NIRMA and both are considered similar. Similarly, under the Nirma Group another company using the word Nirman as mentioned hereinabove, is also associated with and is closely connected with the words NIRMA and NIMA. The word NIMA is associated with NIRMA and both are considered similar. Similarly, under the Nirma Group another company using the word Nirman as mentioned hereinabove, is also associated with and is closely connected with the words NIRMA and NIMA. The word NIRMA is being used as a trademark since the year 1969, therefore, any person, firm or company using the words NIMA and/or NIRMA and/or any other similar mark are not entitled to use the same on their products/services as it will be considered infringement of the well known trademarks NIRMA and NIMA. Any person, firm or company using any word/mark which is identical and/or deceptively similar to the trademark NIRMA, will also cause confusion and deception and is liable for infringement and will be liable for passing of the product as and for the mark NIRMA and all other marks which are associated with the plaintiffs or which may lead the people to believe the association of the same with the plaintiffs. The trademark Nirman is registered in respect of various classes of goods and services. The trademark Nirman is also registered under class - 01 and few other applications for registration under other classes are already filed and pending for registration. The company Nirman Soaps and Detergents Pvt. Ltd. is incorporated under the Companies Act, 1956 on 12.11.1991. Hence, its adoption of word/mark Nirman is since 1991. This Company has been amalgamated with Nirma Credit and Capital Pvt. Ltd. vide order dated 26.08.2008 passed by the Hon'ble High Court of Gujarat. Therefore, plaintiffs have the exclusive right as per the provisions of the Trademarks Act, 1999 and under the said Act because of acquisition of said exclusive right, no person, firm, company or trust is entitled to use any name which may be identical and/or deceptively similar to the trademark NIRMA/Nirman and/or its trade name and/or its trading style. It is further submitted that under the NIRMA group there are various companies/organisations/trusts with the name NIMA/NIRMA, which is an essential feature of the trading style of plaintiffs. The trademark NIRMA is made popular in various parts of the world through advertisement in the TV channels, newspaper advertisements, circulars and also through marketing network. The name NIRMA has therefore, become very popular amongst all classes of people and is indicative of the origin, business, goods and services of plaintiffs. 3.7. The trademark NIRMA is made popular in various parts of the world through advertisement in the TV channels, newspaper advertisements, circulars and also through marketing network. The name NIRMA has therefore, become very popular amongst all classes of people and is indicative of the origin, business, goods and services of plaintiffs. 3.7. It is also the case on behalf of the plaintiffs that plaintiffs have come to know that defendant nos.1 and 2 have created confusion amongst the general public and amongst other organisations under the name of Nirman Foundation Charitable Trust, Nirman Preprimary school, Nirman Primary School and Nirman High School which is identical and/or deceptively similar to the name of NIRMA of plaintiffs. It is also further averred in the plaint that by using the word NIRMA/Nirman defendant nos.1 to 3 have caused lot of confusion amongst the general public and amongst the parents and students by deliberately and malafidely starting/extending the educational services by adopting and using Nirman trademark/mark to pass off identical/similar services as those of the plaintiff. 3.8. That in the said Suit, plaintiffs took out Chamber Summons Exh.6 and 7 and prayed for interim injunction restraining respondents herein - original defendants (herein after referred to as 'the defendants' for short) from using the name Nirman FOUNDATION CHARITABLE TRUST and/or name Nirman PREPRIMARY SCHOOL and/or Nirman PRIMARY SCHOOL and/or Nirman HIGH SCHOOL and/or using any name/trading style and/or mark containing the trademark/words NIRMA/Nirman and/or any other identical or deceptively similar word/mark and thereby restrain them from advertising, printing, publishing and using the words NIRMA/Nirman and/or any other identical and/or deceptively similar words/marks NIRMA/Nirman in respect of their goods and services including the website and thus, restrain them from committing an act of passing off of their business and services as and for the business and services of the plaintiffs. 4. Suit as well as interim injunction applications were resisted by defendants by filing written statement cum reply to the application for interim relief at Exh.23. It is specifically denied on behalf of the defendants that there is infringement of the trademark or copyright or passing off committed by the defendants. It was submitted on behalf of the defendants that they adopted the name Nirman at the time of creating Trust in October, 2007. It is specifically denied on behalf of the defendants that there is infringement of the trademark or copyright or passing off committed by the defendants. It was submitted on behalf of the defendants that they adopted the name Nirman at the time of creating Trust in October, 2007. It was the case on behalf of the defendants that aim of defendant no.2 and 3 trust is to 'help your children to understand that excellence in education cannot be achieved without intellectual and moral integrity coupled with hard work and commitment', emphasis of defendants is on intellectual and moral integrity coupled with hard work and commitment. It was submitted on behalf of the defendants that word 'Nirman' signifies and connotes the intellectual and moral growth and building of the character. It was further submitted that it is with such pious objective that the defendants in consultation with aforesaid persons chose the name 'Nirman' for the purpose of their school. 4.1. It was further submitted by the defendants that the name adopted by the defendants viz. 'Nirman' is a generic name and the same is in public domain. That word 'Nirman' is a common Gujarati, Hindi and Sanskrit word meaning inter alia making or creation. Its synonyms are 'Rachna - Ghatan - Sarjan'. It connotes construction and development of material and non material nature. That the word 'Nirman' encompasses development of various kinds including character building and personality development. It was also submitted on behalf of the defendants that there are hundreds of organisations in different walks of life using the word 'Nirman' in connection with their activities and same is indicative of intended purpose, kind and quality of education being provided by the institution. It was further submitted on behalf of the defendants that it is not open to the plaintiffs to claim exclusivity in relation to the name 'Nirman'. It was case on behalf of the defendants that word 'Nirman' is visually, structurally and phonetically different from the plaintiff's registered trademarks and there is absolutely no scope or potential for confusion or deception amongst the persons likely to avail the services rendered by the defendants. Therefore, it was requested to dismiss said interim injunction applications. 5. It was case on behalf of the defendants that word 'Nirman' is visually, structurally and phonetically different from the plaintiff's registered trademarks and there is absolutely no scope or potential for confusion or deception amongst the persons likely to avail the services rendered by the defendants. Therefore, it was requested to dismiss said interim injunction applications. 5. That the learned Chamber Judge after considering submissions made on behalf of the rival parties and after giving opportunity to both the sides, by impugned order dated 14.07.2009 has vacated exparte ad interim injunction on condition that defendants shall file Undertaking to the effect that defendants shall give an advertisement within one month from said order in two leading newspaper one Gujarati and another in English stating that their schools have nothing to do with Nirma University or Nirma Group Companies and that during the pendency of this Suit, whenever the defendants will give any advertisement or notice in any newspaper or in publicity materials, they shall declare that their schools have nothing to do with Nirma University or Nirma Group of Companies and along with their schools' name in English, they will write their schools' name in Gujarati. That in the said advertisement or publicity material, during the pendency of the suit they will not use the name of Dr. Ashish J.Desai. Being aggrieved and dissatisfied with the impugned order passed by the learned Judge, City Civil Court, Ahmedabad dated 14.07.2009 passed below Exh.6 and 7 in Civil Suit No.1148 of 2009, appellants herein - original plaintiffs have preferred present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure. 6. Mr. Kamal Trivedi, learned Senior Advocate has appeared with Mr. Y.J. Trivedi, learned Advocate appearing on behalf of the appellants herein - original plaintiffs. It is submitted that the learned Chamber Judge has committed error in not granting interim injunction as prayed for restraining defendants from using the word NIRMA/Nirman which is similar and/or deceptively similar to the registered trade mark NIRMA/Nirman. Y.J. Trivedi, learned Advocate appearing on behalf of the appellants herein - original plaintiffs. It is submitted that the learned Chamber Judge has committed error in not granting interim injunction as prayed for restraining defendants from using the word NIRMA/Nirman which is similar and/or deceptively similar to the registered trade mark NIRMA/Nirman. It is submitted that having opined by the learned Trial Court that the plaintiffs have acquired good reputation in commodity market as well as in the educational field, the learned Trial Court should not have equated the test to be applied in case of passing off at part with the test to be applied in case of action for infringement, since they are clearly distinguishable and separate in their scope and purview. In support of his above submissions, Mr. Trivedi, learned Senior Advocate has relied upon decision of the Hon'ble Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 (para 28) and in the case of Parle Products (P) Ltd. v. J.P. & Co., Mysore reported in AIR 1972 SC 1359 (Para 7). 6.1. It is further submitted on behalf of the plaintiffs that phonetic similarity between two marks i.e. NIRMA and Nirman and resultant deceptively similarity between the two should not have been given a goby on the ground that both the said marks are not identical and that at the time of pronouncing the word Nirman the last syllable i.e. 'N' is incapable of being slurred over and as a result there is no scope of confusion while pronouncing the said marks and hence they are not identical. It is submitted that said proposition runs directly contrary to the ratio of the judgment of the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 . It is submitted that learned Judge has not appreciated decision of the Hon'ble Supreme Court i.e. Cadila Health Care Ltd. (Supra) more particularly in applying factor Nos. C, E, F and G referred to in para - 35 of the said judgment. 6.2. It is submitted that learned Judge has materially erred in not appreciating distinction between action of passing off and action for infringement of the registered trademark. C, E, F and G referred to in para - 35 of the said judgment. 6.2. It is submitted that learned Judge has materially erred in not appreciating distinction between action of passing off and action for infringement of the registered trademark. It is submitted that decisions relied upon by the learned Judge while refusing to grant injunction are with reference to action of passing of and not infringement and in none of the said cases there was question of registered trademark being infringed and therefore, learned Trial Court has materially erred in relying upon those judgments/decisions. It is submitted that in view of the mandate of the Hon'ble Supreme Court in the case of Corn Products Refining Co. v. Shanrila Food Products Ltd. reported in AIR 1960 SC 142 the learned Trial Court has erred in not following English judgments in Indian context while determining the phonetic similarity between the two marks. It is further submitted that learned Trial Court has erred in applying the arrangement carved out by the Hon'ble Supreme Court in the case of Ramdev Food Products P.Ltd. v. Arvindbhai Rambhai Patel & Ors. reported in AIR 2006 SC 3304 to the present case inasmuch as before the Hon'ble Supreme Court the case arose out of one single family wherein two groups had agreed to act in particular fashion while trading in their goods and in that context Hon'ble Supreme Court had tried to strike the balance between two groups of family at the stage of the notice of motion. It is submitted that in the present case there are no such circumstances and hence, no question of creating the arrangement in the operative portion of the impugned order which seeks to dilute the substantive right of the plaintiffs arising from their duty registered mark 'NIRMA'. 6.3. Mr. Trivedi, learned Advocate appearing for the plaintiffs has further submitted that learned Trial Court has materially erred in not appreciating difference between action for infringement and action for passing off. It is submitted that difference between the said ingredients in case of action for infringement and in case of action of passing of can appreciated in terms of following chart : Sr. No. Infringement Passing off 1 Statutory right Common law right 2 Absolute Right (Exclusive Rights) Not absolute but subject to common law which may give many excuses to the defendant. No. Infringement Passing off 1 Statutory right Common law right 2 Absolute Right (Exclusive Rights) Not absolute but subject to common law which may give many excuses to the defendant. 3 Only similarly, i.e. visual, phonetic or otherwise is sufficient. No escape is permissible Not sufficient - Any other added material or change in label, trade dress,, mark, difference in price, etc. may allow the defendant to escape the liability. 4 Only adoption of essential features are sufficient (either visually, phonetically or otherwise) Only such adoption may not be sufficient. 5 Plaintiff's right is violated or not is the prime consideration How the defendant has adopted a mark to pass off his goods is the material essence. 6 What one does with the plaintiff's mark is the sole test How the defendant indicates the origin is the important test. 6.4. It is submitted that thus in case of action for infringement on one hand and in case of action for passing off on the other is different. It is submitted that in an action for infringement what is to be seen is as to whether essential parts of the registered mark are copied or resembling in competing mark and if yes action for infringement is maintainable. It is submitted that for the purpose of finding out such a resemblance one needs to find out as to whether there is any similarity i.e. visual, phonetic or otherwise and if there exists one of these similarities action for infringement would succeed. It is submitted that as against above, passing off action is based on deceit, where test to be applied is as to whether the competing mark as a whole is likely to deceive and confuse an average man who is likely to believe that the same is belonging to somebody else. Thus, intent to deceive is a requirement in case of action for passing off, which is not so in case of action for infringement. 6.5. It is submitted by Mr. Trivedi, learned Senior Advocate for the plaintiffs that in case of action for infringement, what is to be compared are the marks i.e. registered mark and competing mark, whereas in case of action for passing off, the whole methodology with reference to not only the goods but also with reference to packing material and other aspects are required to be looked at in a holistic fashion. In other words, in an action for passing off, features outside the marks are also required to be considered, which is not so in case as action for infringement. It is further submitted that in the present case, the mark Nirman as adopted by the defendants has the word NIRMA as prefix which is followed by letter 'N' as suffix which is outside the mark of 'NIRMA' of the appellants. Mr. Trivedi, learned Senior Advocate for the plaintiffs has relied upon decision of the Hon'ble Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 in support of his above submission. 6.6. Mr. Trivedi, learned Senior Advocate for the plaintiffs has relied upon decision of the Hon'ble Supreme Court in the case of Ruston and Hornby Ltd. v. Zamindara Engineering Co. reported in AIR 1970 SC 1649 . It is submitted that in the aforesaid decision, mark 'Rustam India' was held to be deceptively similar as compared to registered mark 'Ruston', despite the fact that the competing mark had a separate word 'Inida' as suffix to the word 'Rustam' whereas in case of registered mark in the said matter, there was only one word i.e. 'Ruston'. It is submitted that in the case of Ruston (supra), the Hon'ble Supreme Court has referred to and considered observations of the Master of Rolls in Saville Perfume Ltd. v. June Perfect Ltd. reported in (1941) 58 RPC 147 wherein it is observed and held that test t o be applied in case of action for infringement is different from the one to be applied in case of action for passing off. 6.7. Mr. Trivedi, learned Senior Advocate appearing for the plaintiffs has relied upon decision of the Hon'ble Supreme Court in the case of Parle Products (P) Ltd. v. J.P. & Co., Mysore reported in AIR 1972 SC 1359 more particularly para 7 of the said judgment. It is submitted that 'Gluvita' and Glucovita; 'Lakshimdhara' and 'Amritdhara'; 'Rangili' and 'Rangoli'; 'Eyetex' and 'Eyelx'; 'Olympia' and 'Olympus' etc. are considered to be deceptively similar to respective trademarks. It is submitted that once appellants - original plaintiffs establish that defendants mark is resembling or deceptively similar with the appellants registered trade mark, then in that case, nothing else remains to be established at prima facie case. 6.8. Mr. are considered to be deceptively similar to respective trademarks. It is submitted that once appellants - original plaintiffs establish that defendants mark is resembling or deceptively similar with the appellants registered trade mark, then in that case, nothing else remains to be established at prima facie case. 6.8. Mr. Trivedi, learned Senior Advocate for the plaintiff has also relied upon decision of the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 . (para 19 on the principle of phonetic similarity). It is further submitted by Mr. Trivedi, learned Senior Advocate for the plaintiffs that to establish infringement plaintiffs have to prove that whether defendants have copied any of the essential features of the plaintiff's registered trade mark?. It is submitted that in the present case the essential feature of plaintiff's trademark is NIRMA which is fully copied by the defendants in their mark 'NIRMA'. It is further submitted that even otherwise competing marks NIRMA and Nirman are identical. It is submitted that apart from letter 'N' both the marks are identical as considered by the Hon'ble Supreme Court in para 16 and 17 of the judgment in the case of Corn Products Refining Co. v. Shanrila Food Products Ltd. reported in AIR 1960 SC 142 . It is submitted by Mr. Trivedi, learned Senior Advocate appearing for the plaintiffs that as held by the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 such a comparison is not a matter of microscopic inspection by putting two marks side by side but the same is a matter from the general and even casual point of view of a customer walking into a shop. It is further submitted that it is further observed by the Hon'ble Supreme Court in the case of Corn Products Refining Co. v. Shanrila Food Products Ltd. reported in AIR 1960 SC 142 that in deciding the question of similarity between the two marks one has to approach it from the point of view of a man of average intelligence and of imperfect recollection. v. Shanrila Food Products Ltd. reported in AIR 1960 SC 142 that in deciding the question of similarity between the two marks one has to approach it from the point of view of a man of average intelligence and of imperfect recollection. It is further submitted that as held by the Hon'ble Supreme Court in the case of Cadila Health Care (supra) for considering the confusion and deception amongst class of purchaser only single class of people is not required to be consider like educated people only, but one has to consider all the class of people. Mr. Trivedi, learned Senior Advocate for the plaintiffs has relied upon decision of this Court in the case of Bharat Tiles and Marble Pvt. Ltd. v. Bharat Tiles Manufacturing Company reported in 1978 (19) GLR 518. It is further submitted by Mr. Trivedi, learned Senior Advocate that merely because others are using the word 'Nirman' is no ground and/or is no defence in favour of defendants permitting them to use word/mark 'Nirman'. It is further submitted that balance of convenience is in favour of the plaintiffs. It is further submitted on behalf of the plaintiffs that plaintiffs are not seeking relief to close the school of defendants. It is further submitted on behalf of the plaintiffs that defendants can change the name of school as they have changed in March 2008 from H.B. Kapadia to Nirman. It is further submitted on behalf of the plaintiffs that defendants case is not of adoption of a new mark but of change of mark that too recently. 6.9. By making above submissions and relying upon aforesaid decisions it is requested to allow present Appeal from Order and grant injunction as prayed for restraining defendants from using the word/mark 'NIRMA' and 'Nirman' in any manner whatsoever. 7. Mr. Mihir Thakore, learned Senior Advocate has appeared with Mr. Rahul Pandya, learned Advocate for the defendants. It is submitted by Mr. Thakore, learned Senior Advocate that plaintiffs have no prima facie case at all. It is submitted that the plaintiffs in the present suit namely Nirma Chemical Works Pvt. Ltd. and Nirma Ltd. are not the registered proprietors of the trademark 'Nirman' in any class. It is submitted that plaintiffs claim that they have invented the trademark NIRMA and NIMA by coining words. It is submitted that the plaintiffs in the present suit namely Nirma Chemical Works Pvt. Ltd. and Nirma Ltd. are not the registered proprietors of the trademark 'Nirman' in any class. It is submitted that plaintiffs claim that they have invented the trademark NIRMA and NIMA by coining words. It is submitted that the word Nirman is derived from Sanskrit language and connotes the construction or development. It is further submitted that the word Nirman is completely different from NIRMA/NIMA being coined word as claimed by the plaintiffs. It is further submitted that such coined words usually are devoid of any meaning and therefore, and even otherwise there is no visual, structural or phonetic similarity between the trademarks NIRMA and NIMA on the one hand and the trademarks Nirman on the other hand. It is submitted that at the time of pronouncing word Nirman las syllable is incapable of being slurred over and as a result there is practically no scope of confusion while pronouncing the marks NIRMA and NIMA on one hand and pronouncing the mark Nirman on the other hand. It is submitted that moreover, the comparison of the trademarks for the purpose of ascertaining whether they are confusing or deceptively similar, requires to take into account various factors including the nature of the activities and the manner in which such activities are carried out and its benefit availed of by the ultimate user. It is submitted that for the purpose of deciding whether the trademarks are deceptively similar and whether there is potential for confusion or deception, it is absolutely necessary to bear in mind the manner in which the goods or services in relation to which such marks are associated are to be consumed or used by the end user. It is submitted that the activity of imparting education cannot be compared with the business activities of manufacturing and marketing goods/commodities including pharmaceutical products. It is submitted that admission into academic institutions of students is relatively much slower process and the parents and the students who decide to avail of the services offered by the plaintiffs and the defendants are not expected or likely to take decision in hurry or in a short period of time. They are reasonably expected to make inquiries about the institutions offering such services and their entire background. They are reasonably expected to make inquiries about the institutions offering such services and their entire background. Therefore, it is not possible and advisable to compare the activity of running educational institution with the activities of selling goods, commodities or even pharmaceutical products. It is submitted that sale of the goods, products or commodities usually takes place across the counter and the entire process is completed within short period of time. Such across the counter sale and the process of admission into educational institution cannot be treated on the same footing. Therefore, it is submitted that defendants do maintain that there is no scope for confusion or deception in using the word Nirman in connection with their institution and the students and parents who are potential end users of such activities are reasonably likely to make inquires about the management and the persons behind such activities. Under the circumstances, there is no scope for confusion or deception in using the word Nirman in connection with their activities by the defendants. It is submitted that word Nirman is a common Gujarati, Hindi and Sanskrit word meaning inter alia making or creation. Its synonyms are 'Rachna - Ghatan - Sarjan'. It is submitted that since aim of defendants nos.2 and 3 - Trust is to help the children to understand that excellence in education cannot be achieved without intellectual and moral integrity coupled with hard work and commitment, the emphasis of the defendants is on intellectual and moral integrity coupled with hard work and commitment. It is submitted that word Nirman signifies and the intellectual and moral growth and building of the character. It is submitted that it is with this pious objective that the defendants in consultation with aforesaid persons chose the name Nirman for the purpose of their school. It is further submitted that name adopted by the defendants viz. 'Nirman' is a generic name and the same is in public domain. It is submitted that it connotes, construction and development of material and non material nature. The word 'Nirman' encompasses development of various kinds including character building and personality development. It is submitted that there are hundreds of organisations in different walks of life using the word 'Nirman' in connection with their activities. It is submitted that it is indicative of intended purpose, kind and quality of education being provided by the institution. The word 'Nirman' encompasses development of various kinds including character building and personality development. It is submitted that there are hundreds of organisations in different walks of life using the word 'Nirman' in connection with their activities. It is submitted that it is indicative of intended purpose, kind and quality of education being provided by the institution. It is submitted that it is not open to the plaintiffs to claim exclusivity in relation to the name 'Nirman'. Such word is visually, structurally and phonetically different from the plaintiff's registered trademarks. Therefore, there is no scope or potential for confusion or deception amongst the persons likely to avail the services rendered by the defendants. 7.1. Mr. Thakore, learned Senior Advocate for the defendants has submitted that the question which is posed for consideration of this Court is whether mark 'Nirman' adopted by the defendants which is a common Gujarat/Hindi/Sanskrit word connoting development for their education trust and school can be said to be identical or deceptively similar to the plaintiff's word/mark 'Nirman registered in various classes. It is submitted that both the words are not identical at all. Relying upon definition of word 'deceptively similar' as provided in Section 2(1) of the Trademarks Act, it is submitted that for the marks to be deceptively similar they should be likely to deceive or cause confusion. It is submitted that the test for determining deceptive similarity of trademarks which are words per se is identical both for infringement and passing off. In support of above submission, Mr. Thakore, learned Senior Advocate has relied upon decision of the Hon'ble Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 (para 29). Mr. Thakore, learned Senior Advocate has also relied upon decision of the Hon'ble Supreme Court in the case of Ruston and Hornby Ltd. v. Zamindara Engineering Co. reported in AIR 1970 SC 1649 in support of his submission that test for infringement is the same as in an action for passing off when the marks are not exact. 7.2. Mr. Mr. Thakore, learned Senior Advocate has also relied upon decision of the Hon'ble Supreme Court in the case of Ruston and Hornby Ltd. v. Zamindara Engineering Co. reported in AIR 1970 SC 1649 in support of his submission that test for infringement is the same as in an action for passing off when the marks are not exact. 7.2. Mr. Thakore, learned Senior Advocate for the defendants has submitted that distinction sought to be drawn by the learned Counsel for the plaintiffs on the principle laid down in the above judgments by the Hon'ble Supreme Court on the basis of the decision of Hon'ble Supreme Court in the case of Parle Products (P) Ltd. v. J.P.& Co., Mysore reported in AIR 1972 SC 1359 is completely devoid of merit. It is submitted that in the case of Parle Products (supra) before the Hon'ble Supreme Court was infringement of a registered trademark of a wrapper and not a trademark of word per se. It is submitted that even Hon'ble Supreme Court in the said decision referred decision in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 but it does not in any manner observe that the law laid down in the said judgment was erroneous. It is submitted that in the case of Parle Products (supra), the Hon'ble Supreme Court was required to consider and compare the two wrappers and in that context it observed that if the impugned mark bears an over all similarity to the registered mark as would be likely to mislead a person, the said mark can be considered to be deceptively similar i.e. that in case of comparing two label marks, the broad and essential features of the two are to be considered. It is submitted that in comparing word marks and to determine whether the two are deceptively similar or not, there would be no other option but to follow the principle laid down by the Hon'ble Supreme Court in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 . 7.3. Mr. Thakore, learned Senior Advocate appearing for the defendants submitted that when it is a question of comparing two words which are not identical the likelihood of deception or causing confusion has to be viewed at from the point of view of the customers. 7.3. Mr. Thakore, learned Senior Advocate appearing for the defendants submitted that when it is a question of comparing two words which are not identical the likelihood of deception or causing confusion has to be viewed at from the point of view of the customers. It is submitted that in the present case, the parents who are likely to place their children in the school for education. Mr. Thakore, learned Senior Advocate has relied upon observations made by Justice Parker in the case of Pianotist Company Ltd. reported in 23 RPC 774. It is submitted that as observed by Justice Parker in the said decision one has to take two words, the one has to judge them, both by their look and by their sound. One must consider the goods to which they are to be applied. One has to consider nature and kind of customer who would be likely to buy those goods. It is observed that infact one must consider all the surrounding circumstances, and further consider what is likely to happen if each of those trademarks is used in a normal way as a trademark for the goods of the respective owners of the marks. It is submitted that observations of Justice Parker have been quoted with approval in various judgments of the Hon'ble Supreme Court such as in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 . It is further submitted by Mr. Thakore, learned Senior Advocate that in comparing two words phonetic and visual similarity have to be ignored when one of the words or both the words have definite meanings or are in common use. It is submitted that if the words have no meaning i.e. they are either coined words or fancy words, phonetic and visual similarity plays a major role in determining whether the two so nearly resemble each other as is likely to deceive or cause confusion. In support of above submission, he has relied upon following decisions : 1. Limit Summit - 1913 (30) RPC 363, Application by Thomas A Smith Ltd. to register a trademark. 2. Red Cap - Night Cap - Re Hedley's trademarks, 1900 (17) RPC 719. 3. ACECACE - ACEC Trade Mark (1965) 10 RPC 369. 4. GEM - MEM - 'MEM' Trademark (1965) 10 RPC 347. 5. Limit Summit - 1913 (30) RPC 363, Application by Thomas A Smith Ltd. to register a trademark. 2. Red Cap - Night Cap - Re Hedley's trademarks, 1900 (17) RPC 719. 3. ACECACE - ACEC Trade Mark (1965) 10 RPC 369. 4. GEM - MEM - 'MEM' Trademark (1965) 10 RPC 347. 5. TORNA - TORNADO - TORNADO Trademarks (1979) 8 RPC 155. 7.4. It is submitted by Mr. Thakore, learned Senior Advocate for the defendants that when the words have no meanings i.e. they are coined words, the possibility of confusion increases due to imperfect recollection of the customers. In this context learned Senior Advocate for the defendants has relied upon the judgment of the Chancery Division and House of Lords in the case of marks 'NUJOL' and 'NUVOLA' in respect of medicated food for human use reported in (1927) 44 RPC 1 and that of House of Lords (1927) 44 RPC 335. 7.5. It is submitted that in the present case, customers would be parents, they would seek admission of their children not only on the basis of the name but on the basis of reputation acquired by the institution, parents do not walk into the school and admit their children to the school. It is submitted that word 'Nirma' and 'Nirman' are phonetically different and no one would confuse one school by the other. It is submitted that word 'Nirman' is commonly used word in Gujarati/Hindi/Sanskrit language and anyone who reads this word would understand it in its natural and ordinary meaning and would not connect it with the word 'Nirma' which is a coined word. It is submitted that argument canvassed on behalf of the plaintiffs that 'Nirman' has been adopted by using the word 'Nirma' as a prefix and 'n' as a suffix completely misses the point that Nirman is not a coined word but is a commonly used dictionary word. It is submitted by Mr. Thakore, learned Senior Advocate for the defendants that the argument that defendants has fully copied the trademarks 'Nirma' in their mark 'Nirman' is again completely devoid of merits in view of the fact that while the word 'Nirma' could be termed as a coined word, the word 'Nirman' is not a coined word but is a word commonly used in Gujarati language and is also descriptive of aim/goal which the defendant institution seeks to achieve. It is submitted that under the circumstances reliance placed upon judgment in the case of Porta v. Porta Blast (1990) RPC 471 and Taw v. Notek (1951) 68 RPC 271 would not be applicable as in both the cases the trademarks used were coined words. Mr. Thakore, learned Senior Advocate for the defendants has also referred to observations of Lord Denning in Newsweek Inc. v. British Broadcasting Corporation 1979 RPC 441 by which Lord Denning has observed that test is whether the ordinary, sensible members of the public would be confused. 7.6. Mr. Thakore, learned Senior Advocate for the defendants has submitted that by adopting the word 'Nirma' the plaintiffs cannot acquire monopoly over the words which are part of the Gujarati language and exclude others from using it. It is further submitted that Nirman is a common word in Gujarati/Hindi language and consequently has been adopted as a part of trading name by large number of firms, companies, institutions and charities all over India. It is further submitted that aforesaid is not pleaded as defence that since others are using and as the plaintiffs have not taken action, the defendants can use it. It is submitted that it is pleaded to show that the said word is commonly used word and by adopting a coined word 'Nirma' as a mark, the plaintiffs cannot acquire monopoly over the word 'Nirman'. Relying upon decision of the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 (more particularly para - 35), it is submitted that considering aforesaid criteria, plaintiffs have no prima facie case. It is submitted that two marks are word marks and not label marks or composite marks. There is no phonetic resemblance between the words 'Nirma' and 'Nirman' spoken in Gujarati language and when written in Gujarati there is no visual similarity between the words 'Nirma' and 'Nirman'. The nature of services in respect of which they are used is such where no one would be confused except a moron in hurry. It is submitted that the class of persons who are going to use the service would be educated class and they are bound to take a degree of care, intelligence and make reasonable inquires before putting their children in school. It is submitted that the class of persons who are going to use the service would be educated class and they are bound to take a degree of care, intelligence and make reasonable inquires before putting their children in school. The mode of purchasing this service cannot be equated with the mode of purchasing soaps and detergents. It is submitted that it is these factors which will have to be taken into consideration while comparing two words and determining whether they are deceptively similar or not. It is submitted on behalf of the defendants that they are not deceptively similar, there is no scope of deception or confusion and consequently no prima facie case is made out for injunction either in passing off or under the statutory right of infringement of trademark/copyright. Mr. Thakore, learned Senior Advocate for the defendants has relied upon decision of the Delhi High Court in the case reported in 2005 (30) PTC 561. 7.7. It is submitted by Mr. Thakore, learned Senior Advocate for the defendants that learned Trial Court was right in reaching the conclusion that both the marks are not identical or deceptively similar and learned Trial Court has rightly concluded that there is no prima facie case to obtain injunction and consequently learned Trial Court has rightly dismissed interim injunction application. It is further submitted that learned Trial Court has exercised discretion judiciously and same is not required to be interfered with by this Court in exercise of appellate jurisdiction. It is submitted that as held by the Hon'ble Supreme Court in the case of Wander Ltd. v. Antox India (P) Ltd. reported in 1990 Suppl SCC 727, learned Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principle of law regulating grant or refusal of interlocutory injunction. 7.8. Under the circumstances, it is requested to dismiss present Appeal from Order. 8. Heard the learned Advocate appearing on behalf of the respective parties at length. 9. At the outset it is required to be noted that dispute is with respect to two marks 'Nirman' and 'Nirman'. 7.8. Under the circumstances, it is requested to dismiss present Appeal from Order. 8. Heard the learned Advocate appearing on behalf of the respective parties at length. 9. At the outset it is required to be noted that dispute is with respect to two marks 'Nirman' and 'Nirman'. It is the case on behalf of the original plaintiffs that plaintiff no.2 is registered proprietor of trademark 'Nirman' and 'Nima' in various classes. It appears that plaintiff no.2 has applied for registration of mark 'Nirman' in class 41 of H Schedule to Trademarks Rules 2002 which deals with education, providing of training, entertainment, sporting and cultural activities. It i s the case on behalf of the appellant - original plaintiff' that they are also using said mark 'Nirman' in educational field since 1994 and 'Nirman' is well known mark/house mark. It is the case on behalf of the plaintiffs the mark Nirman as adopted by the defendants has the word NIRMA as prefix which is followed by letter 'N' as suffix which is outside the mark of 'NIRMA' of the appellants. Therefore, it is alleged by plaintiffs that by using mark/word 'Nirman' there is infringement of registered trademark 'Nirman' and that defendants by using said word/mark 'Nirman' have committed infringement of copy right of the plaintiffs. Thus, it is the case on behalf of the plaintiff that by using the word/mark 'Nirman', defendants have committed act of infringement of the plaintiffs registered trademark 'Nirma' and also committed infringement of copyright of the plaintiffs. Thus, prayer of the plaintiffs is for infringement of trademark and infringement of copyright. 10. On the other hand it is the case on behalf of the defendants that word Nirma registered trademark of plaintiff no.2 is coined word and that word 'Nirman' is commonly used word in Gujarati/Hindi/Sanskrit language and anyone who reads this word would understand it in its natural and ordinary meaning and would not connect it with the word 'Nirma' which is a coined word. It is the case on behalf of the defendants that word Nirman has been adopted by the defendants as it is common word in Gujarati/Hindi/Sanskrit language meaning inter alia making or creation. Its synonyms are 'Rachna - Ghatan - Sarjan'. It is the case on behalf of the defendants that word Nirman has been adopted by the defendants as it is common word in Gujarati/Hindi/Sanskrit language meaning inter alia making or creation. Its synonyms are 'Rachna - Ghatan - Sarjan'. It is submitted that mark 'Nirman' adopted by the defendants which is a common Gujarat/Hindi/Sanskrit word connoting development for their education trust and school cannot be said to be identical or deceptively similar to the plaintiff's word/mark 'NIRMA'. It is the case on behalf of the defendants that undisputedly two words are not identical. 11. In light of aforesaid facts more particularly when undisputedly two marks are not identical, question which is posed for consideration of this Court is whether by using word Nirman/mark by the defendants, can it be said to be deceptively similar causing confusion which will lead to infringement of plaintiff's trademarks 'Nirma' and infringement of copyright of the said mark ? 12. Number of decisions have been cited by the learned Counsel appearing on behalf of the plaintiffs such as 'Gluvita' and 'Glucovita' reported in AIR 1960 SC 142 ; 'Lakshmidhara' and 'Amritdhara' reported in AIR 1963 SC 449 ; 'Shri Andal' and 'Shri Ambal' reported in AIR 1970 SC 146 ; 'Rustom India' and 'Ruston' reported in AIR 1970 SC 1649 ; 'Mahendra and Mahendra' and 'Mahindra and Mahindra' reported in AIR 2002 SC 117 . It is submitted that Hon'ble Supreme Court and various High Courts have considered aforesaid respective words as similar to each other. 13. Number of decisions have been cited by the learned Counsel for the defendants such as "Dropovit" and "Protovit" reported in AIR 1970 SC 2062 ; Harrods and Harrodian reported in 1996 RPC 697 and Ayur and Ayush reported in 2003 (27) PTC 213 and number of decisions of which respective marks/names are not held to be deceptively similar. Therefore, each case is required to be considered in light of facts and circumstances of the case more particularly the field in which it is to be used. 14. It is to be noted that plaintiffs as well as defendants are running educational institutions by using the word 'Nirma' and 'Nirman' respectively. Therefore, names which are to be considered by the concerned persons would be in the field of education. 14. It is to be noted that plaintiffs as well as defendants are running educational institutions by using the word 'Nirma' and 'Nirman' respectively. Therefore, names which are to be considered by the concerned persons would be in the field of education. Infact it is to be noted that mark/word 'Nirma' of the plaintiffs is a coin word and mark/word 'Nirman' used by the defendants is commonly used word in Gujarati/Hindi/Sanskrit language and having specific meaning i.e. development of child including character building and personality development. It is also to be noted that there are hundreds of organizations in different walk of life using word 'Nirman'. 15. As such both 'Nirma' and 'Nirman' by no stretch of imagination can be considered to be deceptively similar as likely to decisive or cause confusion. There is no phonetically resemblance between the word 'Nirma' and 'Nirman' spoken in Gujarati language, when writing in Gujarati there is no visual similarity between the two words. In view of the fact that both words 'Nirma' and 'Nirman' are not identical, for the purpose of determining whether they are deceptively similar or not, definition of deceptively similar given in section 2(1)(h) of the Trademarks Act is required to be considered. Section 2(1)(h) reads as under : (h) 'deceptively similar' - A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion'. 15.1. Considering definition of deceptively similar for the marks to be deceptively similar, they should be likely to deceive or cause confusion. In the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 SC 980 while dealing with question of deceptively similar of two marks, in para 29, the Hon'ble Supreme Court has observed as under : 29. When once the use by the defendant of the mark which is claimed to infringe the plaintiff's mark is shown to be "in the course of' trade", the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out. Where the two marks are identical no further questions arise; for then the infringement is made out. When the two marks are not identical, the plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiff's registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered (Vide S. 21). A point has sometimes been raised as to whether the words "or cause confusion" introduce any element which is not already covered by the words "likely to deceive" and it has some times been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive ". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark. The purpose of the comparison is for determining whether the essential features of the plaintiff's trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff." 16. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff." 16. Now learned Advocate for the appellants have tried to distinguish judgment of the Hon'ble Supreme Court in the case of Kaviraj Pandit (supra) relying upon decision of the Hon'ble Supreme Court in the case of Parle Products (P) Ltd. (supra). However, it is to be noted that decision in the case of Parle Products (P) Ltd. (supra) would not be of any assistance to the appellants as case before the Hon'ble Supreme Court in the case of Parle Products (P) Ltd. (supra) was infringement of a registered trademark of wrapper and not a trademark of word per se. 17. As rightly submitted on behalf of the defendants that when it is a question of comparing two words which are not identical likelihood of deception or causing confusion has to be viewed from the point of view of customers. In such as case one has to consider nature and kind of customers who would be likely to buy goods. In the case of Pianotist Company Ltd. 23 RPC 774, Justice Parker has observed as under : "That section has been the subject of judicial decision on many occasions, and I think without going into the details of the cases, it may be taken that the law is as follows: You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. In fact you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion - that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that there will be a confusion in the mind of the public which will lead to confusion in the goods - then you may refuse the registration, or rather you must refuse the registration in that cases". 18. Aforesaid observation of Justice Parker has been referred to and considered by the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 . In comparing two words phonetic and visual similarity have to be ignored when one of the words or both the words have definite meanings or are in common use. If the words have no meaning i.e. they are either coined words or fancy words, phonetic and visual similarity plays a major role in determining whether the two so nearly resemble each other as it likely to deceive or cause confusion. In a case where application to register word 'limit' as trademark in respect of collars and shirts was opposed by the owners of the trademark 'Summit' registered in respect of collars and shirts on the ground that its similarity would lead to deception, in the case reported in 1913 (30) RPC 363, objections against such registration was overruled by holding that words 'limit' and 'summit' were words in common use each conveying a perfectly definite idea. One of the aspect which is required to be considered is class of customers/consumers. In the present case, customers/consumers would be parents. They would seek admission of their children not only on the basis of name but also on the basis of reputation acquired by the institution. Parents do not walk into the school and admit their children to the school in hurry. Purchasing goods from the counter/shop cannot be compared with process of admission in educational institution. Both cannot be treated on the same footing. Parents do not walk into the school and admit their children to the school in hurry. Purchasing goods from the counter/shop cannot be compared with process of admission in educational institution. Both cannot be treated on the same footing. the students and parents who are potential end users of such activities are reasonably likely to make inquires about the management and the persons behind such activities. Their decision for taking admission in one or other institution is not going to be instantaneous or quick decision. They are not taken on the spur of the moment. Therefore, though it is held that both 'Nirma' and 'Nirman' are not identical, even there is no scope for confusion or deception in using the word 'Nirman' by the defendants. 19. At this stage, decision of the Hon'ble Supreme Court in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 more particularly para 35 is required to be considered. As held by the Hon'ble Supreme Court in the said decision in a action for passing of and deciding the question of deceptively similar following factors are to be considered : "35. Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered : (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works. (b) The degree of resemble ness between the marks, phonetically similar and hence similar in idea. (c) The nature of the goods in respect of which they are used as trade marks. (d) The similarity in the nature, character and performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (f) The mode of purchasing the goods or placing orders for the goods and (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks." 20. Delhi High Court in the case reported in (2005) 30 PTC 561 has observed as under : "A student who would like to go to educational institution is not a lay customer. Delhi High Court in the case reported in (2005) 30 PTC 561 has observed as under : "A student who would like to go to educational institution is not a lay customer. If a student likes to go to Sent Stephen College in Delhi or wants to go to Shri Ram College of Commerce or Hindu College, he will go to these colleges and not to other, although there may be similarity of names." 21. Thus, considering above, it is observed and held that as such there is no similarities between the two words 'Nirma' and 'Nirman' which is likely to create/cause confusion amongst customers and therefore, by using 'Nirman' by the defendants there is neither any infringement of trademarks of plaintiffs mark 'Nirma' nor there is infringement of copyright as alleged. There is another reason also in support of above findings. As stated above, word/mark 'Nirma' used by the plaintiffs is coin word without any specific meaning. On the other hand, mark/word 'Nirman' used by the defendants is commonly used in Hindi/Gujarati/Sanskrit language having specific meaning i.e. development of various kinds including character building and personality development. 22. It is not in dispute that word 'Nirman' is being used by number of persons and institutions as part of their trading name or business activities. Therefore, by adopting a coined word 'Nirma' as a mark, the plaintiffs cannot acquire monopoly over the word 'Nirman'. At this stage observations of Lord Denning in Newsweek Inc v. British Broadcasting Corporation 1979 RPC 441 are required to be noted which is as under : "The text is whether the ordinary, sensible members of the public would be confused. It is not sufficient that only confusion would be to a very small unobservant section of society or as Foster J put it recently if the only person who would be misled would be 'a moron in a hurry'." 23. Thus attempt on the part of the plaintiffs to restrain defendants from using word 'Nirman' which is commonly used word in Hindi/Gujarati/Sanskrit language is to monopolize a natural word which cannot be permitted. Considering above facts and circumstances of the case, learned Trial Court has rightly refused to grant injunction in favour of the appellants - plaintiffs by observing as there is no prima facie case in favour of plaintiffs and even balance of convenience is not in favour of plaintiffs. 24. Considering above facts and circumstances of the case, learned Trial Court has rightly refused to grant injunction in favour of the appellants - plaintiffs by observing as there is no prima facie case in favour of plaintiffs and even balance of convenience is not in favour of plaintiffs. 24. In light of above decisions of the Hon'ble Supreme Court in the case of Wander Ltd. v. Antox India (P) Ltd. reported in 1990 (Supp.) SCC 727; N.R. Dongre v. Whirlpool Corporation reported in 1996 (5) SCC 714 and in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 deserves to be considered. As per above decisions of the Hon'ble Supreme Court once Court of first instance exercises its discretion to grant or refuse to grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material placed before the Court and is supported by cogent reasons, the appellate Court will be loath to interfere simply because on a de novo consideration of the matter it is possible for the appellate Court to form a different opinion on the issues of prima facie case, balance of convenience, irreparable injury and equity. 25. In the present case as stated above, as such learned Trial Court has not committed any error in refusing to grant injunction and the impugned order is not vitiated by error of law. Learned Judge is justified in refusing to grant injunction. No case is made out to interfere with the impugned order passed by the learned Trial Court refusing to grant injunction which is based upon sound exercise of discretion. Infact it is found that no other view can be taken other than what learned Trial Court has taken while refusing to grant interim injunction. No case is made out to interfere with the impugned order passed by the learned Trial Court refusing to grant injunction which is based upon sound exercise of discretion. Infact it is found that no other view can be taken other than what learned Trial Court has taken while refusing to grant interim injunction. On the contrary, learned Trial Court has sufficiently protected interest of the plaintiffs also while imposing certain conditions upon the defendants while refusing injunction to the effect that defendants shall give advertisement in two leading newspaper one in Gujarati and another in English stating that their schools have nothing to do with Nirma University or Nirma Group Companies and that whenever the defendants will give any advertisement or notice in any newspaper, or in publicity materials, they shall declare that their schools have nothing to do with Nirma University or Nirma Group of Companies and along with their schools name in English, they will write their schools name in Gujarati. Thus even interest of the plaintiffs is protected more than required. 26. In view of above and reasons stated above, present Appeal from Order fails which deserves to be dismissed and accordingly it is dismissed. Notice discharged. In view of dismissal of Appeal from Order, no order in Civil Application. Appeal dismissed.