Judgment N.V. Ramana, J. This C.M.A. is directed against the order dated 16.04.2010, passed by the III Additional Chief Judge, City Civil Court, Hyderabad, dismissing the application in I.A. No. 1277 of 2010 in O.S. No. 164 of 2010 filed by the appellant seeking to grand ex parte ad interim injunction against the respondent. The appellant, namely M/s. TRINETRA Super Retail Private Limited, is a company registered under the Companies Act, 1956, and claims to be engaged in the business of providing goods and services. The appellant among others claims to be running a successful and a well known chain of retail stores under the brand name “TRINETRA Super Retail Private Limited” for more than two decades. That they honestly and bona fidely coined the brand name “TRINETRA” and adopted the same in the year 1987 with respect to their products and services and by use of the said trade mark, extensively and continuously, they have made huge sales turnover and profits. The appellant further claims that they are the owner and proprietor of various trademarks numbering about 50, which were registered with the Registrar of Trade Marks on the applications made by their predecessors firm. As the trademark “TRINETRA” is registered in favour of the appellant under various classes and categories of goods, the appellant contends that except they, no other person has any right to use the said trade mark, which is similar or deceptively similar, phonetically or confusingly similar to their trade mark. Any such adoption of their trade mark, by any person or entity or business house or institution, which is deceptively, phonetically or confusingly similar, the appellant contends would amount to infringement of their trade mark, and therefore, illegal. The appellant further contends that the respondent herein has displayed a banner at their business premises in Kukatpally which declared Opening Shortly – “MEE TRINETRA Supermarket”, and they were shocked to note that the trade mark of the respondent was similar to that of the registered trade mark of the appellant in all aspects i.e. sound and get up. The adoption of the word “TRINETRA” by the respondent in their business name “MEE TRINETRA”, the appellant contends infringed their registered trade mark. The adoption of the word “TRINETRA” by the respondent in their business name “MEE TRINETRA”, the appellant contends infringed their registered trade mark. The appellant further states that on enquiries made by them, they further learned that the respondent has (a) gone ahead and registered a private limited company by name – MEE TRINETRA Trading Private Ltd – with the Registrar of Companies under the Companies Act, 1956; (b) already started the process of indenting stocks from various suppliers, obtained relevant permissions, store licenses, approvals from various authorities; (c) opened a retail store at the premises in Kukatpally where the banner was displayed and also at other places in the city and; (d) planning to open further such stores in the city. The acts of the respondent, the appellant contends, are completely illegal, unlawful etc., and violative of their trade mark rights. The impugned trade mark, “MEE TRINETRA” of the respondent, the appellant claims, is identical and exactly similar to that of the registered trade mark “TRINETRA” of the appellant, which is exclusively identified and related to the appellant, and therefore, contends that if the respondent is allowed to continue to use the word “TRINETRA, it would amount to infringement and passing off of their trade mark, resulting in irreparable loss to them in their business. Contending so, the appellant filed the present suit for permanent injunction restraining the respondents, their directors, partners, servants and agents, distributors, stockists etc., from either directly or indirectly using the registered trade mark “TRINETRA” or any other trade mark identical to or deceptively similar to their registered trade mark with regard to the respondents goods and services, which amounts to infringement of passing off of the appellant’s registered trade marks “TRINETRA”, “TRINETRA Quality First”, “TRINETRA 110%” and “TRINETRA Quick Shop” bearing numbers, as detailed in the petition as prayed for. Pending disposal of the suit, the appellant, by the present application, sought ex parte ad interim injunction against the respondent and their agents etc., from the use of the word “TRINETRA” in their business. The respondent contested the present application by filing counter inter alia contending that the application is not maintainable in law. They contended that the name “TRINETRA”, initially had been adopted by a proprietary firm in the year 1987, later it was converted into a partnership firm and as a private limited company. The respondent contested the present application by filing counter inter alia contending that the application is not maintainable in law. They contended that the name “TRINETRA”, initially had been adopted by a proprietary firm in the year 1987, later it was converted into a partnership firm and as a private limited company. The name “TRINETRA”, the respondent contends is a common name found in South India, and therefore, the appellant cannot claim any right exclusive or proprietary right over use of the said name. That the appellant by the use of the name “TRINETRA”, is not dealing in any exclusive products either by way of manufacture or rendering of services, and therefore, they cannot claim to have exclusive right over the alleged registered trade mark or of its usage. The respondent further contended that the appellant by their own admission, is selling brands of other manufacturers, and therefore, has no claim to any of those products. The respondent denied that appellant is manufacturing its own household consumable private labels, including grains, pulses, sugar, rice, etc., as claimed. The registration, if any, without prejudice could only pertain to styles, logos, designs, marks and not that of the common name. The particular style adopted by the appellant is only registered and not otherwise. The respondent further contended that the appellant is no more using the brand name “TRINETRA” in their business, and they are doing business in the name of “MORE”, and as a matter of fact, in the twin cities, the name “TRINETRA” is conspicuously absent and only the name “MORE” is visible. The respondent further contended that they are registered as a private limited company under the name and style of “MEE TRINETRA TRADING PVT LTD” and not as “MEE TRINETRA TRADING PVT LTD.”, as claimed by the appellant. They got their trade name registered with the Registrar of Companies on 13.01.2010. The appellant is engaged in sale of products of various manufacturers and suppliers by putting their logo, and there being no prohibition in law, to deal with similar products of various manufacturers and suppliers and do business in the name or to store them and sell them with the approval of said authorities, the appellant cannot have any objection to the use of the word “TRINETRA”, which is dissimilar and not deceptively similar. The respondent further denied that they displayed the banner, as claimed by the appellant, at Kukatpally or at any other place in the city. The respondent further contended that to the legal notice dated 16.01.2010 got issued by the appellant, they issued replied notice on 27.01.2010 clarifying the entire gamut of the claims of appellant in proper perspective and denied their rights. That the rejoinder dated 16.02.2010 got issued by the appellant was not only frivolous, but repetitive of what has been stated by the appellant in the legal notice dated 16.01.2010. So contending, the respondent prayed for dismissal of the present application. Before the Court below, the appellant and respondent did not adduce any oral evidence, but they marked documents – the appellant marked Exs. P1 to P10, while the respondent marked Exs. R1 to R16. However, the Court below, having considered the rival contentions of the parties in the light the material placed, by order dated16.04.2010, dismissed the present application, and refused to grant ex parte ad interim injunction in favour of the appellant holding that there is no deceptive similarity between the logo of the appellant and the respondent and that the word “TRINETRA” is a generic name of Lord Shiva. Questioning this order of the Court below, the appellant, as stated above, filed the present appeal. The learned counsel for the appellant submitted that the appellant is a company registered under the Companies Act, 1956. The appellant got the trademark “TRINETRA” registered under Section 18 of the Trade Marks Act with the Registrar of Companies on 21.04.2006, with prior usage status w.e.f. 01.01.1987. He submits that since the appellant has been using the trade mark “TRINETRA” in their business since 1987 and got the same registered with prior status, they alone have the exclusive right to use the word “TRINETRA” in respect of the business being carried on by them, and none else. He submits that since the appellant has been using the trade mark “TRINETRA” in their business since 1987 and got the same registered with prior status, they alone have the exclusive right to use the word “TRINETRA” in respect of the business being carried on by them, and none else. He submitted that since the respondent sought to start and started his business in which the appellant is also dealing by prefixing the word “MEE” to “TRINETRA”, there resulted a deceptive similarity between the trade mark of the appellant and the respondent, and as such, the respondent should be restrained from the use of the deceptive trade mark “TRINETRA” as it infringed their trade mark, but the Court below committed a grave error in refusing to grant ad interim injunction restraining the respondent from using the word “TRINETRA”, relying on a judgment of this Court in Chennai Hotel Saravana Bhavan v. Hotel Saravana Bhavan 2005 (3) ALT 789 , which relates to a case of passing off and not infringement of trade mark, by holding that the word “TRINETRA” is a generic name of Lord Shiva, and that there is no deceptive similarity between the logo of the appellant and the respondent. The learned counsel for the appellant further having taken us through the definitions of the words “deceptively similar”, “mark”, “trade mark” and “registered” and various other provisions of the Trade Marks Act, contended that if there is similarity or deceptive similarity between the trade marks of the contesting parties, either visually, phonetically or by way of colourable imitation or otherwise, the Court should restrain the opposite side from using the said trade mark of the other party, as it infringes the trade mark of the other party. In support of this argument, and various other propositions of law, he relied upon the judgments of the apex Court in Kaviraj Pandit Durga Dutta Sharma v. Navaratha Pharmaceutical Laboratories AIR 1965 SC 980 , Ruston & Hornby Ltd. v. Zamindara Engineering Co. In support of this argument, and various other propositions of law, he relied upon the judgments of the apex Court in Kaviraj Pandit Durga Dutta Sharma v. Navaratha Pharmaceutical Laboratories AIR 1965 SC 980 , Ruston & Hornby Ltd. v. Zamindara Engineering Co. AIR 1970 SC 1649 , Parle Products Private Limited v. J.P. & Co., Mysore (1972) 1 SCC 618 and Midas Hygiene Industries Private Limited v. Sudhir Bhatia 2004 (28) PTC 121 (SC), and of the Delhi High Court in Ahmed Oomerbhoy v. Gautam Tank 2008 (36) PTC 193 (Del), Cable News Network LP v. Cam News Network Limited 2008 (36) PTC 255 (Del), Sun Pharmaceuticals Industries Limited v. Cipla Limited 2009 (39) PTC 347 (Del) and Bihar Tubes Limited v. Garg Ispat Limited 2009 (41) PTC 741 (Del). He thus contended that the Court below committed an error in refusing to grant ad interim injunction as sought for by the appellant and prayed that the order under appeal be set aside and the C.M.A. be allowed. The learned counsel for the respondent submitted that the word “TRINETRA”, which is the name of Lord Shiva, is a generic name and used most commonly in Southern part of India. The appellant having not coined the said word “TRINETRA”, cannot contend that they have exclusive right to use the said word merely because they have got the same registered as a trademark with the Registrar of Trade Marks. To demonstrate that the word “TRINETRA” is generic in nature, the learned counsel for the respondent produced a list of firms registered with the name “TRINETRA” with other prefixes and suffixes. He submitted that if at all the appellant had any objection to the use of the word “TRINETRA” by the respondent, they ought to taken objection at the time of registration with the Registrar of Trade Marks, and the appellant having not done so, cannot claim exclusive right of the use of the word “TRINETRA”, particularly when the name, style and entity of the respondent, is graphically entirely different from that of the appellant. The learned counsel for the respondent further having taken us through the definition of the word “trade mark” as defined in Section 2(zb) of the Trade Marks Act, 1999, submitted that unless and until the appellant demonstrates that the trade mark, got registered by him, is graphically similar and not capable of being distinguished, thereby creating deceptive similarity, cannot claim exclusive right to the use of the word “TRINETRA”. He further submitted that the right of the appellant to use the trade mark “TRINETRA” under the Trade Marks Act, is confined only to the products manufactured or services rendered by the appellant, which they can sell by affixing their logo or trademark or symbol or emblem, the appellant being neither a manufacturer nor a provider of services, and the style and colour of the trade mark, logo and entity of the respondent being dissimilar to that of the appellant and capable of being distinguished and there being no deceptive similarity, the appellant cannot contend that by the use of the word “TRINETRA”, the respondent has infringed their trade mark “TRINETRA”, merely because the respondent is also dealing with the sale of goods in which the appellant is also dealing. He further submitted that the appellant, is no more using the name “TRINETRA”, and as are carrying on their business in the name and style of “MORE”, they cannot take any objection to the use of the word “TRINETRA”, which is graphically different, and having regard to the provision of Section 35 of the Trade Marks Act, the appellant cannot prevent the respondent from using the trade mark “MEE TRINETRA”, on the ground that by the use of the word “TRINETRA” in their trade mark, the trade mark of the appellant “TRINETRA” is infringed. In support of his arguments, he placed reliance on the judgments of the apex Court in Ruston & Hornby Ltd. v. Z. Engineering Co. AIR 1970 SC 1649 , Thukral Mechanical Works v. P.M. Diesels Pvt. Ltd. AIR 2009 SC 1443 and Skyline Education Institute (India) Private Limited v. S.L. Vaswani (2010) 2 SCC 142 and of this Court in Chennai Hotel Saravana Bhavan v. Hotel Sarvana Bhavan. AIR 1970 SC 1649 , Thukral Mechanical Works v. P.M. Diesels Pvt. Ltd. AIR 2009 SC 1443 and Skyline Education Institute (India) Private Limited v. S.L. Vaswani (2010) 2 SCC 142 and of this Court in Chennai Hotel Saravana Bhavan v. Hotel Sarvana Bhavan. 2005 (3) ALT 789 He submitted that since the word “TRINETRA” is generic and there being no deceptive similarity between the logo of the appellant and the respondent, the Court below has rightly refused to grant ex parte ad interim injunction prayed for by the appellant, and no interference is called for therewith. Hence, he submitted that the appeal be dismissed. Having heard the learned counsel for the appellant and learned counsel for respondent, the only question that arises for consideration in this C.M.A. is whether the appellant has made out any prima facie case, balance of convenience and irreparable injury, for grant of interim injunction, restraining the respondent and their agents from using the name “MEE TRINETHRA” as according to the plaintiff, the use of the word “MEE TRINETHRA’” by the respondent has infringed their trademark. It is the contention of the appellant that the respondent in the guise that the name “TRINETRA” is generic in nature, cannot take a defence to infringe the registered trade mark of the appellant which they are making use of since 1987. This contention of the appellant, may be considered in the light of the judgments relied on by the appellant. In Kaviraj Pandit Durga Datta Sharma v. Navaratna Pharmaceutical Laboratories, on which the counsel for the appellant, placed heavy reliance to contend that length of user will be a material factor for the mark to become distinctive, the apex Court, discussed the difference between action for passing off and action for infringement of trade mark, and held as under: 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 marks. Where the two marks are identical no further question arise; for then the infringement is made out. Where the two marks are identical no further question 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… The facts of the case on hand can be distinguished from the facts of the above-referred case. In that case, the parties were manufacturing the goods i.e., medicines. After full-fledged trial, basing on the appreciation of evidence, it was held by the apex Court that the mark or trade name ‘Navaratna Pharmaceutical Laboratories’ had by user acquired distinctiveness in the sense of indicating the respondent and the respondent alone as the manufacturer of goods bearing that mark and that finding has been affirmed by the learned Judges of the High Court. It was also further held by the apex Court that there was also indubitable evidence regarding the recognition of that mark as indicating origin on the part of that section of the public who buy these goods in the course of trade or for consumption. Thus, the finding was that by reputation the mark had come to denote the goods of the respondent. Of course, it was also held that the essential features of the trademark of the plaintiff have been adopted by the defendant. May be, the appellant is using the word “TRINETRA” since 1987, but it is the specific case of the respondent, that the name “TRINETRA” was used by the appellant, when it was a proprietary firm, that later it was converted into a private limited company, and that now the appellant, is no more using the name “TRINETRA” in their business outlets, and that they are using the word “MORE”. The appellant did not dispute the fact that the appellant is presently carrying on their business through the outlets, which are styled as “MORE”. That being so, we fail to understand how the name, “MEE TRINETRA” is deceptively similar to that of the trade name under which the appellant is carrying on i.e. “MORE”, so as to affect their business adversely. That being so, we fail to understand how the name, “MEE TRINETRA” is deceptively similar to that of the trade name under which the appellant is carrying on i.e. “MORE”, so as to affect their business adversely. There is no doubt that in an action for infringement where the defendant’s trade mark is identical to that of the plaintiff’s mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion, as held by the apex Court in Ruston and Hornby Ltd. v. Zaimdara Engineering Co., on which the counsel for the appellant placed reliance, but the ratio laid down therein, cannot be made applicable to the facts of the present case, because the findings arrived therein, were based on the evidence adduced by the parties, and the finding of the High Court that there is a deceptive resemblance between the word “RUSTON” and the word “RUSTAM” and therefore the use of the bare word “RUSTAM” constituted infringement of the plaintiff’s trade mark “RUSTON” was not challenged by the other side. It is in such circumstances, the apex Court, held as follows: In an action for infringement where the defendant’s trade mark is identical with the plaintiff’s mark, the Court will not inquire whether the infringement is such as is likely to decide or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it the test of infringement is the same as in the action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions. But in the instant case, it is not the complaint of the appellant that the respondent is using the exact mark of the plaintiff, but contends it is similar. Therefore, the test in this case, is also as to likelihood of confusion or deception. The learned counsel for the appellant has also placed reliance on the decision reported in Parle Products (P) Ltd., v. J.P. and Co., Mysore, in support of his argument that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. The learned counsel for the appellant has also placed reliance on the decision reported in Parle Products (P) Ltd., v. J.P. and Co., Mysore, in support of his argument that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. In the said case, considering the facts appearing therein, the apex Court found that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same, the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other. Having found so, the apex Court observed that if one was not careful enough to note the peculiar features of the wrapper on the plaintiffs’ goods, he might easily mistake the defendants’ wrapper for the plaintiffs’ if shown to him some time after he had seen the plaintiffs’. It is in such circumstances, the apex Court held that the defendants’ wrapper is deceptively similar to the wrapper of the plaintiffs’ that was registered. But such facts, do not appear in the present case, so as place reliance on it. In Midas Hygiene Industries Pvt. Ltd., and another v. Sudhir Bhatia and others, on which the counsel for the appellant placed reliance to contend that when infringement is complained of, the Court should grant injunction, the apex Court observed that mere delay in bringing action is not sufficient to defeat grant of injunction in cases of infringement. On facts, the apex Court found that the carton of the defendant was changed to look almost identical to that of the appellant at a subsequent stage and this prima facie indicated the dishonest intention to pass off his goods as those of the appellants. But that is not the case on hand, because the labels used in the packing of the respondent are said to be different from that of the labels used in the packing by the appellant of their goods. Reliance is also placed by the appellant on the judgment of the Delhi High Court in Ahmed Oomerbhoy v. Gautam Tank. In that case both the parties were manufacturing and selling edible ground nut oils and plaintiff No.1 was doing business under its various trade marks including “Postman”, “Tilola” etc. Reliance is also placed by the appellant on the judgment of the Delhi High Court in Ahmed Oomerbhoy v. Gautam Tank. In that case both the parties were manufacturing and selling edible ground nut oils and plaintiff No.1 was doing business under its various trade marks including “Postman”, “Tilola” etc. The marks were registered under the Trade and Merchandise Act, 1958. Thus, they were selling goods since 1949 under the brand name ‘Postman’ and the defendants started selling edible ground nut oils using the trade mark “Super Postman”. The High Court of Delhi observed that the Court will have to go by the principle of ‘balance of inconvenience’ which will be as to who will be more inconvenienced in case the injunction as prayed for by the plaintiff is granted or not granted and who will suffer irreparable loss. It was further observed that the Court must weigh plaintiffs’ need against the defendants’ and determine where the ‘balance of convenience lies and preserve the status quo in respect of rights of the parties which will appear on a prima facie case. In this case, admittedly, the appellant has been using the name board as “MORE”, though previously it was using the name board as “M/s. Trinetra Super Retail Private Limited”. Now the respondent is using the name board as “M/s. Mee Trinetra Trading Private Limited. The words “Mee” and “Super” show the difference between the two names. Since the appellant is now trading under the banner “MORE” the question of causing likelihood of confusion or deception may not prima facie arise. At any rate, this is an issue to be decided after full-fledged trial. Therefore, the facts in the above referred case are not applicable to the facts of the case on hand. The learned counsel for the appellant in support of his argument that when balance of convenience is in favour for grant of injunction, injunction should be granted, placed reliance on the judgment of the Delhi High Court in Cable News Network LP, LLLP (CNN) v. Cam News Network Limited. The petitioner in the said case, was using the registered trademark and passing off as ‘CNN International’. The defendant was using the mark ‘CNN’ on the cover its magazine as an abbreviation of its name ‘CAM News Network Today’. The petitioner in the said case, was using the registered trademark and passing off as ‘CNN International’. The defendant was using the mark ‘CNN’ on the cover its magazine as an abbreviation of its name ‘CAM News Network Today’. It was observed that a trade mark is much more than a just name or symbol of identity that a trader adopts in relation to his goods and services; it is the respository of his business hard-earned goodwill and reputation in the market and delay by itself is not a sufficient defence to an action. Having observed so, it was held that the mark ‘CNN has come to be distinctively associated with plaintiff’s goods and services, whereas the defendant has only recently started its publication business and failed to adduce any convincing and plausible explanation as to why it has used the plaintiffs registered trade mark ‘CNN’. More over in that case, the plaintiff had taken a specific plea that it has no objection to the defendant using ‘CAM News Network Today’ on the cover of its magazine and its objection is only in respect of using of its mark ‘CNN’. It is in such circumstances, the Court granted injunction. In support of his argument that loss in case of infringement of trade mark cannot be adequately compensated and therefore, injunction should be granted, placed reliance on the judgment of the Delhi High Court in Sun Pharmaceuticals Industries Limited v. Cipla Limited. The Court while dealing with the issue of infringement of trade mark THEOBID observed that if a registered proprietor is entitled to maintain an action for injunction and found entitled to injunction, the injunction ought not to be denied for the reason of the alternate relief of directing accounts to be kept. In that case the plaintiff instituted the suit for permanent injunction restraining infringement of trademark THEOBID in relation to medicinal and pharmaceutical preparation and passing of by using the trademark THEOBID-D and also in relation to medicinal preparations. It was found that the infringement of rights in a trademark can never be sufficiently compensated and on facts it was observed that in a case where the registered owner as well as another are both claiming user, the balance of convenience is in favour of registered user. It was found that the infringement of rights in a trademark can never be sufficiently compensated and on facts it was observed that in a case where the registered owner as well as another are both claiming user, the balance of convenience is in favour of registered user. It was also found that the defendant is an assignee having acquired the unregistered mark only in 2007, whereas plaintiff’s application was pending since the year 2000 with the Registrar of trade marks. In the case on hand, though the Regional Director, Ministry of Corporate Affairs, allowed the complaint of the appellant and directed the Registrar of Companies, to delete the word “TRINETRA” from the name of the respondents, within three months, and even though the learned counsel for the appellant filed CMAMP No.2231 of 2010 seeking to receive the order dated 15.09.2010 passed by the Regional Director, Ministry of Corporate Affairs, Southern Region, Chennai in proceedings bearing Ref.No.4/22/AP-1/2010 as additional evidence, wherein the Regional Director, Ministry of Corporate Affairs, Southern Region, Chennai, allowed the petitioner’s complaint and directed the Registrar of Companies to delete the word “Trinetra” from the name of the respondents within three months by an order dated 15.09.2010, the fact remains, the learned counsel for the respondents submitted that the said order is under challenge. At any rate, since the suit is still pending before the trial Court, we are of the view that the appellant herein may file the said document before the lower Court and the lower Court may deal with the same in accordance with law. In the judgment of the Delhi High Court in Bihar Tubes Ltd., v. Garg Ispat Ltd, on which the counsel for the appellant placed reliance, the case of the plaintiff was that the defendants mark “APOLLO” was identical or deceptively similar to its mark “APL APOLLO”. The plaintiff obtained certificate from the Registrar on 10.08.2005. The defendant had opposed the application of the plaintiff for registration of the trademark “APOLLO”. The Court observed that a Court will not in general deny protection on account of reason of the mere delay and laches. On facts it was found that the defendant’s mark “APOLLO” is deceptively and confusingly similar to the plaintiff’s registered trademark “APL APOLLO”. The defendant had opposed the application of the plaintiff for registration of the trademark “APOLLO”. The Court observed that a Court will not in general deny protection on account of reason of the mere delay and laches. On facts it was found that the defendant’s mark “APOLLO” is deceptively and confusingly similar to the plaintiff’s registered trademark “APL APOLLO”. It was further observed that only difference of the prefix “APL” memory of a normal but prudent consumer is a ‘fading memory’ which carries with it broad impressions and accordingly injunction was granted. However, the issue is whether the trademark is identical and deceptively similar and whether the action of the defendant is misleading a person usually dealing with the goods in issue, has to be considered after full-fledged trial. It is also settled law that particular and essential features of the two marks are to be considered. Therefore, the settled legal position is the Court has to see whether the similarity between the marks of the plaintiff and defendant so close either visually, phonetically or otherwise and whether there is imitation. The learned counsel for the respondents in support of his arguments, relied on the decision of the apex Court in Ruston and Hornby Ltd. v. Zaimdara Engineering Co., which has been relied on by the appellant itself for the purpose of showing distinction between the cases of in an action for infringement and passing-off actions. He has also relied on the decision of the apex Court in M/s. Thukral Mechanical Works v. P.M. Diesels Pvt.Ltd., wherein interpretation of the provisions of Section 46(1)(b) of the Trade and Merchandise Marks Act, 1958 came up for discussion. The first respondent in that case is a registered proprietor of a trademark “Field Marshal” for Diesel Engines since 1964. One M/s. Jain Industries got the trademark “Field Marshal” registered under Clause (7), inter alia, for Flour Mills Centrifugal Pumps, Couplings for machines and pulleys. The appellant also started its business of manufacturing and selling centrifugal pumps also under the mark “Field Marshal”. The first respondent challenged the action of the appellant and sought permanent injunction for alleged infringement of the said trademark and/or claiming right of passing off in respect thereof. The appellant also started its business of manufacturing and selling centrifugal pumps also under the mark “Field Marshal”. The first respondent challenged the action of the appellant and sought permanent injunction for alleged infringement of the said trademark and/or claiming right of passing off in respect thereof. During the pendency of the proceedings M/s. Jain Industries by a deed of assignment assigned the said trade mark along with its goodwill in favour of the appellant and one of the stipulations contained therein reads as under: That the party of the second part has satisfied the party of the first part of having used the mark FIELD MARSHAL in respect of Centrifugal Pumps and Valves since 1973. It was observed that non-user of the trademark entails the consequences laid down by clause (b) of Sub-section (1) of Section 46 of the Act. Sub-clause (3) protects a mark from being removed from the register on ground of non-use if such non-use is shown to have been due to special circumstances in the trade. Admittedly, in this case the appellant is not using the trademark “TRINETRA” in its name board and using “MORE”. Therefore, it prima facie, appears that Clause (b) of sub-section (1) of Section 46 of the Act is attracted. This is not a case of assigning a registered trademark in favour of some other person. Of course, it was also held that when the assignee obtained assignment of trademark for bona fide use the liability owing to non-user on part of its predecessor cannot be fastened on assignee. The judgment of the apex Court in Skyline Education Institute (India) Private Limited v. S.L. Vaswani and another, on which the counsel for the respondents placed reliance, the facts were that the respondents were running an educational institution with the name “Skyline Institute of Engineering and Technology” which was a duly recognised institute. The appellant Institute objected to the use of word “Skyline” on the ground that they were already using this word and had already applied for its registration as a trade mark. The apex Court observed as follows: It has not been disputed on behalf of the appellant that the work “Skyline” is being used as trade name by various companies/ organisations/ business concerns and also for describing different types of institutes/institutions. The apex Court observed as follows: It has not been disputed on behalf of the appellant that the work “Skyline” is being used as trade name by various companies/ organisations/ business concerns and also for describing different types of institutes/institutions. The voluminous record produced by the respondents before this Court shows that in India as many as 117 companies including computer and software companies and institutions are operating by using the work “Skyline” as part of their name/nomenclature. The impugned order being an interlocutory order, we would like to deal with the appeal, as shortly as we can, in order to avoid pre-judging the case of the parties at the hearing of the case by the original Court, which may probably be supplied with full material than it has at present for ascertaining the truth. In view of the fact that the trial of the suit is yet to be concluded and the final decision of the suit is awaited, it is appropriate that the question of interim injunction is decided only on the basis of undisputed facts and material which can be legitimately be taken into account at this interlocutory stage. The action for infringement is a remedy provided by the statue on a registered holder of the trademark, in case of any violation of his right to use his trademark exclusively for his goods. Therefore, when the plaintiff comes to the Court with a complaint of infringement by the defendant and it is found that the defendant is using the plaintiff’s trademark, an injunction will be issued in favour of the plaintiff, restraining the defendant from using the trademark. As the disposal of the suit for injunction often takes time, because of the pendency of cases in Courts, the suit for permanent injunction in respect of infringement of trademark is invariably accompanied by an application for grant of temporary injunction pending disposal of the main suit. The grant of injunction, being an equitable remedy provided under the Specific Relief Act, is governed by the principles of prima facie case, balance of convenience and irreparable injury. The grant of injunction, being an equitable remedy provided under the Specific Relief Act, is governed by the principles of prima facie case, balance of convenience and irreparable injury. However, before proceeding to consider whether the appellant has made out a case for grant of interim injunction, it would be appropriate if a reference is made to the object of interlocutory injunction, as stated by the House of Lords, which principles were reiterated by the apex Court in Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd (1999) 7 SCC 1 . In American Cyanamide Co. vs. Ethican Ltd. 1975 (1) AII ER 504, Lord Diplock laid down the following guiding principles for the grant of interim injunction. 1. The plaintiff must first satisfy the Court that there is a serious issue to decide and that if the defendant were not restrained and the plaintiff won the action, damages at common law would be inadequate compensation for the plaintiff’s loss. 2. The Court, once satisfied of the matter, will then consider whether the balance of convenience lies in favour of granting injunction or not, that whether justice would be best served by an order of injunction. 3. The Court does not and cannot judge the merits of the parties respective cases and that any decision of justice will not be taken in a state of uncertainty about the parties rights. If there is uncertainty, the Court should be double reluctant to issue an injunction. The apex Court in Wander Ltd. V. Antox India Pvt. Ltd. 1990 (Supp.) SCC 727, considered the object of interlocutory injunction, and held as follows: The object of an interlocutory injunction is to protect the plaintiff against injury by violation of his rights for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against the, and determine where the ‘balance of convenience lies’. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against the, and determine where the ‘balance of convenience lies’. What should be the scope of enquiry and adjudication in an interlocutory injunction application vis-à-vis main case, was succinctly stated by the apex Court in Cable News Network LP, LLLP (CNN) v. Cam News Network Limited, which reads as follows: It is trite that interlocutory proceedings, in a matter pending adjudication, are conducted with a definite purpose, which purpose is different and distinct from the one when the matter is finally decided upon merits. The role of the Court, at this stage of litigation, is not to resolve or reconcile the conflicting issues as to facts and evidence on which the claims of either party may ultimately depend. Nor is the Court, at this stage, inclined at deciding upon technical questions of law which call for detailed arguments and thorough examination of evidence brought on record. Rather, the Court, while affording interlocutory relief, is guided and driven by considerations which are altogether different from those which influence the eventual adjudication of the matter on merits. As evidence is yet to be led in interlocutory proceedings, the Court has to consciously restrain itself from coming out with any absolute findings and observations which may prejudice the rights and interests of either party when the matter is ultimately decided upon merits. In doing so, the Court has to ensure that it balances the rights of the plaintiff with those of the defendant and provides such relief which may not be conclusive, nevertheless, is equitable in the peculiar facts and circumstances of the matter. When an action for infringement of trademark is complained, the onus would be on the plaintiff to establish that the trademark used by the defendant in the course of trade in the goods in respect of which his mark is registered is deceptively similar and there is likelihood of confusion or deception arising from similarity of trademark or logo or words used by the plaintiff. This is prima facie case. This is prima facie case. The rule of phonetic similarity should not be extended in such a way that words with some consonants of similar dispatch should always be treated as phonetically similar. If such expansion is permitted, it is very difficult. Words change their meanings sometimes by a prefix and sometimes by a suffix. They also change when combined with another word. In determining phonetic similarities, thus the phonetic sequence of the consonants and vowels in a word or a compound of words will also be significant, in the context, however, deception of confusion is not over only by eliminating phonetic infringement. In trademark, visual violation is equally important for the obvious reason that all the commodities for sale to all group of people- literate, illiterate. It is visual which causes the real impact. A person trading with a particular mark is entitled to insist that no one else should use that mark for trading in the same and similar commodity. If there is any infringement or the mark used by the other is deceptively similar to his mark in the sense that it nearly resembles his mark that is likely to deceive or cause confusion, he undoubtedly can ask the Court to restrain the other to trade with such deceptively similar mark. But it does not mean a person who has a registered trademark can stop all the others, whose trademark has slightest similarity with his trademark, from doing business. The second element i.e. ‘balance of convenience’ signifies that convenience of both the contestants have to be looked into. In all the cases, at interlocutory stage, the prima facie case is necessarily not after a mini trial but only a conclusion that plaintiff has made out a triable case. Therefore, such a case is not one of certainty as in the case of infringement of trademark or copyright itself, but is a case of there being likelihood of causing confusion and deception. Necessarily in cases of this nature, the courts would have to consider the issue of balance of convenience and irreparable injury, keeping in view the statutory right and the greater chance of success of the plaintiff and balancing it with the harm that may be caused to the defendant if ultimately the plaintiff does not succeed. Necessarily in cases of this nature, the courts would have to consider the issue of balance of convenience and irreparable injury, keeping in view the statutory right and the greater chance of success of the plaintiff and balancing it with the harm that may be caused to the defendant if ultimately the plaintiff does not succeed. The courts have to take into consideration along with prima facie case, the other two factors i.e. balance of convenience and irreparable loss. The plaintiff can always be compensated by costs, if in case ultimately it is found that the defendant tried to capture the market on the basis of the goodwill of the plaintiff. A rigid invocation without contemplating elasticity in the application of rules as to the grant of injunction might sometimes result in hardship, which cannot be cured later. Cases of infringement, no doubt, do not depend on proof of actual deception. Yet the entire object of trademark law would be rendered meaningless if courts were to mechanically grant injunction relief, where no injury is shown, or shown to be a natural result of someone’s use of a mark. The object of Trade Mark law is not to prevent conduct by a trader or producer, which is calculated to injure the business or goodwill of another trader. This is more where generic terms or common words are used for trademark. In trademark law, it must be remembered that it is not mechanical application of abstract principles, after ritualistic incantation of standard terms. It strives to protect business built up to match certain standards, if a trader or manufacturer uses words that acquire some distinctiveness, he is undoubtedly entitled to protection at least in respect of similar marks, in respect of the goods he deals in. However, merely because he acquires registration, it does not mean that he becomes its exclusive owner. Here, we deem it appropriate to refer to the judgment of the Delhi High Court in Pidilite Industries Pvt. Ltd. v. Mittees Corporation AIR 1989 (Del) 157 , wherein it laid down the following guidelines, with respect to grant of injunction, when use of a registered trade mark, is complained of: At this stage only prima facie opinion is required to be on the question whether the two marks and containers are deceptively similar or not to an average customer and on which side the balance of convenience lies. Before I take up the comparison of the two marks or the similarity or dissimilarity on the container, it would be apposite to state some well settled principles governing these matters namely: – 1) It is always a question of fact in each case whether the deception or confusion is likely to be caused or not by use of the impugned trademark, the court has to put itself in the position of an average customer and ask a question whether there is any likelihood of deception or confusion or not and then answer the question on that basis. 2) The marks must be compared as a whole, it is not right to take a portion of the word and say, because that portion of the word differ from the corresponding portion of the word in the other case. There is no sufficient similarity to cause confusion. The totality of the trademark is to be seen to find out whether there is likelihood of deception or confusion or mistake in the minds of persons accustomed to the existing trademark. 3) The likelihood of confusion or deception is to be seen in relation to average unwary customer. 4) It is the tendency to mislead or cause confusion that form the gist of passing off action and the plaintiff need not establish actual deception. The apex Court in Cadila health Care v. Cadila Pharmaceuticals Ltd. 2001 (5) SCC 73 , observed as follows: While considering the question of granting order of injunction one way or the other, evidently the court, apart from finding out a prima facie case would consider the question in regard to the balance of convenience of the parties and also irreparable injury which might be suffered by the plaintiff if the prayer for injunction is to be the contention of the plaintiff must be bona fide. The question sought to be tried must be serious question and not only a mere triable issue. The apex Court further in S M Dyechem Ltd. v. Cadbury India Ltd. 2000 (5) SCC 573 , held as under: It is well settled that the plaintiff must prove that essential features of his registered mark have been copied. The onus to prove deception is on the part of the plaintiff who alleges infringement. The apex Court further in S M Dyechem Ltd. v. Cadbury India Ltd. 2000 (5) SCC 573 , held as under: It is well settled that the plaintiff must prove that essential features of his registered mark have been copied. The onus to prove deception is on the part of the plaintiff who alleges infringement. A mark is said to be infringed by another trader if even without using the whole of it the later uses one or more of its “essential features”. The identification of an essential feature depends partly on the courts own judgment and partly on the burden of the evidence that is placed before it. Ascertainment of an essential feature is not to be by ocular test alone, it is impossible to exclude consideration of the sound of words forming part of the whole of the mark. Now, we shall consider the grant or otherwise of interim injunction in the light of the facts of the case on hand and the guiding principles and elaborate discussion, as made above. It is the specific case of the plaintiff-appellant that it is a company registered under the Companies Act, 1956. The appellant among other claims is running a successful and a well-known chain of retail stores under the brand name “Trinetra Super Retail Private Limited”. They have registered the trademark in the year 1987 and have been using it exclusively and continuously. While the respondents have named their business as “MEE TRINETRA Super Market”, which is similar to that of the appellant, and use of the same by the respondent, amounts to infringement of appellant’s trademark. It is the case of the respondent that the appellant is no more using the word “TRINETHRA” and they are doing their business in the name of “MORE” and the name “TRINETHRA” is conspicuously absent and only the name “MORE” is visible. The further case of respondent is that appellant is not the manufacturer of any of the goods and the name “TRINETHRA” is a generic word and appellant cannot exclusively claim the same. Now, as per the guidelines laid down by the apex Court, the burden lies on the plaintiff-appellant to prove that the two marks are deceptively similar and it is likely to cause deception in the mind of an average customer. Now, as per the guidelines laid down by the apex Court, the burden lies on the plaintiff-appellant to prove that the two marks are deceptively similar and it is likely to cause deception in the mind of an average customer. In view of the submissions made on the either side, this Court is not inclined to go into the question whether the name “TRINETHRA” is a generic name or not, because this issue has to be decided by the trial Court, after a full-fledged trial basing on evidence let in by parties. In this application, we are only concerned with regard to the deceptive similarity of the both brands form a common man’s point of view. The appellant’s business name is M/s. Trinetra Super Retail Private Ltd., and the respondent’s business name is M/s. Mee Trinetra Trading Private Limited. The appellant is doing business in the name of “MORE”. In this case, both the respondent and the appellant are not manufacturer of any goods as to claim exclusive right over them. Both the parties procure the goods from the farmer and sell them by labeling them with their respective brand names. The logo and brand names used by both the parties are totally different. So, by any stretch of imagination, it cannot be prima facie said that the trademark used by the respondent is causing or is likely to cause deception in the minds of people by which the business of the appellant is affected. By this, we hold that the plaintiff failed to prove that there is prima facie case in his favour. The appellant did not produce any material to show that their business has been adversely affected by the use of the name “MEE TRINETRA” by the respondent, much less have filed any affidavit stating that by the use of the name “MEE TRINETRA”, a confusion is caused in the minds of the general public or customers that the outlets run by the respondent, are that of the appellant and thereby their business was affected adversely. The appellant also failed to show that balance of convenience lies in their favour for grant of interim injunction, and that irreparable loss would be caused, if the respondent is not restrained from using the trademark “MEE TRINETRA”. The appellant also failed to show that balance of convenience lies in their favour for grant of interim injunction, and that irreparable loss would be caused, if the respondent is not restrained from using the trademark “MEE TRINETRA”. For the foregoing reasons, we are of the considered view that the appellant-plaintiff failed to discharge his burden to prove the prima facie case that the trade mark “MEE TRINETRA” used by the respondent is deceptively similar to that of the appellant’s trademark, causing confusion in the average customers. We also hold that there is no balance of convenience in favour of the appellant for grant of interim injunction restraining the respondent from using the word “MEE TRINETHRA”. The appellant also failed to make out irreparable injury that has been caused to them by the use of the trade mark “MEE TRINETHRA’. Therefore, the appellant is not entitled to the equitable relief of injunction. We are of the view that there are no grounds to interfere with the order of the Court below in refusing to grant ad-interim injunction in favour of the appellant. However, it is made clear that these are only prima facie findings made at the time of disposal of interlocutory application, praying for the relief of temporary injunction. Any findings made herein should not be construed as expression of this Court. There is no merit, in the C.M.A., and the same is accordingly dismissed.