JUDGMENT - 1. This appeal is directed against the order dated 14th December 2009 passed by the learned Additional District Judge, Vadodara, below Application Exh.5 in Regular Civil Suit No 2009 whereby the application for interim injunction came to be dismissed. 2. The short facts emerging from the record are as under: 2.1 The appellant company, which is a registered company under the provisions of the Companies Act, 1956, runs its business in the name and style of “Matrix Telecom Pvt. Ltd.”. In the year the predecessors of the appellant company named M/s Matrix Systems had adopted the “MATRIX” and made the word popularized for their products. According to the appellant M/s Matrix Systems had acquired tremendous goodwill and reputation with the said trade mark “MATRIX”. Thereafter a Deed of Assignment took place on 21.12.1998 when present company was incorporated and since then the trademark “MATRIX” is being used by the app company by virtue of such assignment. According to the appellant, the appellant company a predecessors are using trademark “MATRIX” since 1991 and therefore they are prior users. 2.2 The company is engaged in the manufacturing and trade in digital EPABX system, Telephone instruments, Voice Messaging Products, G.S.M. F.C.T. Routers, Public Address Systems, Sing Multi-port G.S.M. Gateways, Single and Multi-Port VOIP gateways, Intercom Security Product and Power Liner Carrier Communication of EPAX including development and designing of electronic cards for the aforesaid products. The system developed by the appellant's predecessors had rows and columns of electronic switches called “Switching Matrix”, a telecom engineering term and thus thoughtfully adopted the word “MATRIX” as their trademark. 2.3. According to the appellant, the appellant had taken efforts to popularise the said goods and services and had taken much pains to popularise the word "MATRIX" and it has become so popular for the product of the appellant that it has got a secondary meaning exclusively for the goods of the appellant. The appellant produced certain documents showing that the predecessors and the Company itself have engaged in spending huge money for publication to make the trade mark "MATRIX" popular. It had applied for registration of trade mark "MATRIX" in Class-9. The appellant produced certain documents showing that the predecessors and the Company itself have engaged in spending huge money for publication to make the trade mark "MATRIX" popular. It had applied for registration of trade mark "MATRIX" in Class-9. The appl ication took undue long time in process, and therefore, again on 1st February, 2005 the appellant made a fresh application being Application No. 1335540 in "Class9" in respect of EPABX system and mentioned that the trade mark "MATRIX" was used since 1-1-1991. Since, 3rd September, 2004, the appellant adopted and started using a website/domain named “www.matrixtelesol.com” with a view to expand its business through internet and to facilitate faster communication. 2.4. According to the appellant, on 22nd June, 2006 the respondent opposed the registration of the trade mark "MATRIX" as applied by the appellant. The respondent claimed that it is carrying on the business under the name "Matrix Cellular Services Pvt. Ltd." since 1999, and therefore, the respondent was the owner and proprietor of the trade mark "MATRIX", and hence the appellant was not entitled to get any registration as such. The respondent claimed that the trade mark as proposed for registration was identical and deceptively similar to cause confusion. 2.5. In July, 2005 the appellant learnt that the respondent had also applied for the registration vide No. 1320818 in Class-9 for registration of the identical trade mark "MATRIX" in respect of telecommunication apparatus and equipments together with hardware and it was opposed by the appellant and that application is also pending. 2.6. Thereafter, the respondent applied for registration of trade mark "MATRIX" in relation to Services in Class-38. The application bearing No. 1320817 was also opposed by the appellant and the said application is also pending. 2.7. According to the appellant, the Company had come across the situation of confusion on account of the use of trade mark by the respondent which is adopted by the appellant-Company and its predecessors since the year 1991. 2.8. The appellant has received complaints from the dealers; retailers and consumers on account of the use of impugned trade mark "MATRIX" by the respondent which reveals that the use of trade mark "MATRIX" by the respondent has caused confusion and deception in the minds of the unwary consumers. 2.9. 2.8. The appellant has received complaints from the dealers; retailers and consumers on account of the use of impugned trade mark "MATRIX" by the respondent which reveals that the use of trade mark "MATRIX" by the respondent has caused confusion and deception in the minds of the unwary consumers. 2.9. Under these circumstances the appellant filed Regular Civil Suit No. 11 of 2009 before the District Court, Vadodara for declaration as well as injunction against the respondent restraining by injunction from manufacturing, selling/offering for sale or advertising telecommunication products, hardware, etc., and also provide telecommunication services in any manner dealing in similar goods or services bearing the impugned trade mark "MATRIX" or any other trade mark deceptively similar to the word "MA TRIX" so as to pass off the respondent's services and goods or business as and for the services, goods and business of the appellant. The appellant also sought for interim injunction pending the suit and also sought injunction from using the domain name "MATRIX" in the website by the respondent. 3. The respondent appeared through Advocate and contested the application. 3.1. After hearing the parties, the 2nd Additional District Judge, Vadodara, vide order dated 14th December, 2009 dismissed the injunction application. Against said impugned order the presel1t appeal has been filed. 3.2. Learned Advocate for the appellant submitted that the trial Court has failed to consider and follow the correct principles for grant of temporary injunction, in particular reference to passing off proceedings and has actually applied incorrect principles. 3.3. He submitted that the appellants are continuously using the trade mark MATRIX since the year 1991, but the respondent was using it only since the year 1999. According to him the learned Judge erred in observing that the word " MATRIX" is a generic word whereas it is not so and it is a coined word. 3.4. According to him the trade mark MATRIX was used in relation to telecommunication services and the appellant's business and the respondent's business were bound to overlap inasmuch as both were in the telecommunication sector, and that there was, therefore, a trade connection between the appellant's goods and/or business and the respondent's services and/or business. 3.4. According to him the trade mark MATRIX was used in relation to telecommunication services and the appellant's business and the respondent's business were bound to overlap inasmuch as both were in the telecommunication sector, and that there was, therefore, a trade connection between the appellant's goods and/or business and the respondent's services and/or business. He further pointed out that the respondent had filed an application for registration of the impugned trade mark MATRIX in relation to the goods included in Class-9 which goods were of the same description and/or were cognate, allied and complimentary to the appellant's goods. 3.5. Learned Advocate submitted that the trial Court has committed an error in observing that the rival marks are phonetically distinct and dissimilar and there is no possibility of any confusion. 3.6. According to him the trial Court has wrongly gone into the question of delay and that the injunction could not be refused on the ground of delay in filing the suit. 3.7. He submitted that the respondent has made application for registration of the impugned trade mark MATRIX in Class-9 in respect of similar goods as those in respect of which the appellant is using its trade mark MATRIX (in Class 9), and therefore, there is probability of confusion and deception. 3.8. Learned Advocate submitted that the respondent's website/domain www.matrix.in is deceptively similar to the appellant's website/domain name www.matrixtelesol.com which was created prior in point of time. He has also extensively submitted about the appellant's products and contended that the appellant's products and services on one hand and the respondent's products and services on the other hand are the cognate, allied and/or complimentary products and services. 3.9. He has also submitted that the respondent is thus taking undue advantage of the appellant's trade mark MATRIX and the dishonesty of the respondent is apparent from the fact that its name and trading style as also its impugned website/domain name contain the word MATRIX as its leading and prominent part. 3.10. Learned Advocate has finally submitted that unless the respondent is restrained from using the impugned trade mark MATRIX, the appellant would suffer irreparable loss, damage and injury and that the appellant has a strong prima facie case in its favour. 3.10. Learned Advocate has finally submitted that unless the respondent is restrained from using the impugned trade mark MATRIX, the appellant would suffer irreparable loss, damage and injury and that the appellant has a strong prima facie case in its favour. He further submitted that looking to the fact and circumstances of the case the balance of convenience is also in favour of the appellant, and therefore, the interim injunction ought to have been granted. 4. In support of his submission learned Advocate for the appellant relied upon the following decisions : 4.1. In the case of Wander Ltd. v. Antox India Pvt. Ltd., reported in 1990 Supp. (1) SCC 727 it is held as under: “5. Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated is to protect the plaintiff against injury by violation of his right for which he could not adequately be 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 another and determine where the “balance of convenience lies”. The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The Court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted." "9. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the 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 principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not re-assess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion.” 4.2. In the case of Laxmikant V. Patel v. Chetanbhai Shah, reported in AIR 2002 SC 275 : [2002 (2) GLR 997 (SC)], it is held that the three elements of passing off action are the reputation of goods, possibility of deception and likelihood of damage to the plaintiff and the same principle, which applies to trade mark, is applicable to trade name. Passing off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a necessary element of the right of action, and the absence of an intention to deceive is not a defence though proof of fraudulent intention may materially assist a plaintiff in establishing probability of deception. 4.3. In the case of Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, reported in 2004 (3) SCC 90 , it is held that where there is an infringement of trade mark or copyright, an injunction normally must follow and mere delay in bringing the action is not sufficient to defeat grant of injunction in such case. 4.4. 4.3. In the case of Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia, reported in 2004 (3) SCC 90 , it is held that where there is an infringement of trade mark or copyright, an injunction normally must follow and mere delay in bringing the action is not sufficient to defeat grant of injunction in such case. 4.4. In the case of Dhariwal Industries Ltd. v. M.S.S. Food Products, reported in AIR 2005 SC 1999 , wherein it is held as under : “Section 27 of the Trade Marks Act, 1999 provides that nothing in that Act shall be deemed to affect the right of action against any person for passing off goods or services as the goods of another person or services by another person or the remedies in respect thereof. Therefore, the fact that neither party has a registered trade mark as on the date of the suit cannot stand in the way of entertaining the claim of the plaintiff and granting the plaintiff an injunction in case the plaintiff is in a position to show prima facie that it was the prior user of its mark, that it had a prima facie case and that the balance of convenience was in favour of the grant of an interim injunction. It is provided in Sec. 39 of the Act that an unregistered trade mark may be assigned or transmitted with or without goodwill of the business concerned. It is, therefore, possible for a plaintiff or a defendant to show that an unregistered trade mark that was being used by another person earlier had been assigned to it and that it can tack on the prior user of its predecessor.” 4.5. In the case of Duncans Agro Industries Ltd. v. Somabhai Tea Processors (P) Ltd., reported in 1995 (1) GLR 380 , it is held that a trader going to the market with his product under a particular trade mark or trade name as a distinctive mark, gets the proprietary right to use that mark to the exclusion of others irrespective of the length of user or extent of his business, and therefore, the balance of convenience is in favour of the trader having trade mark in his name. 4.6. 4.6. In the case of R. N. Bhagat v. Bhagat Marketing Corpn., reported in 2007 (35) PTC 571 (Guj.) : [ 2007 (1) GLR 686 ] which was an appeal against the order granting interim injunction in respect of trade mark “Bhagat”, “R. N. Bhagat” and “N. S. Bhagat” and the defendant was the brand name “Supreme Bhagat” and plaintiff prima facie established that they were prior user of the mark, and therefore, injunction was granted. 4.7. In the case of Century Traders v. Roshan Lal Dugger & Co., reported in AIR 1978 Delhi 250, it is held as under: “19. Even the Supreme Court in Kaviraj Pandit Druga Dutt Sharma's case, ( AIR 1965 SC 980 ) referred to earlier, observed that the use by the defendant of a trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in an action for infringement. Salmond in his Law of Torts (Twelfth Edition) described the basis of passing off action in the following words : “The Courts have wavered between two conceptions of a passing off action as a remedy for the invasion of a quasi proprietary right in a trade name or trade mark, and as a remedy analogous to the action on the case for deceipt for invasion of the personal right not to be injured by fraudulent competition. It has recently been said that the true basis of the action is that the passing off ..... injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business'. In general, the violation of a right to property is actionable, even though, it is innocent and though no damage has been proved. At common law, it was necessary to prove an actual fraudulent intention, but a different view was taken in equity, and since the Judicature Acts it has been generally accepted that it is not necessary in an action for passing off to prove fraud that is to say, an intent to deceive. It is sufficient in all cases to prove that the practice complained of is calculated (that is to say, likely) to deceive.” In our view, the proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is injunction alone or injunction, accounts and damages. It is sufficient in all cases to prove that the practice complained of is calculated (that is to say, likely) to deceive.” In our view, the proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is injunction alone or injunction, accounts and damages. If there is a likelihood of the offending trade mark invading the proprietary right, a case for injunction is made out. We are fortified in coming to this conclusion by the observations in a Bench decision of this Court in Prina Chemical Works v. Sukhdayal, ILR 1974 (1) Delhi 545.” 4.8. Daimler Benz Aktiegesellschaft v. Hybo Hindustan, reported in AIR 1994 Delhi 239 wherein it is held that the trade mark namely three pointed star in circle/ring and the word “Benz” is associated with name of world' famous car “Benz” and the defendant can be restrained from using it by way of injunction. 4.9. Honda Motors Co. Ltd. v. Charanjit Singh, reported in 2003 (26) PTC 1 (Del.) wherein the Delhi High Court restrained the defendant from using the trade mark HONDA for their products by way of interim injunction. 4.10. In the case of G. D. Searle & Co. v. Medigraphs Pharmaceuticals Pvt. Ltd., reported in 1998 PTC 18, the Bombay High Court in Para 6 held as under : “6. .... The intention in adopting the mark at least at an interim stage is irrelevant. A mark adopted innocently or mark adopted with lack of innocence, both would stand on a similar footing at least at an interim stage, when the relief of injunction is sought for. Inquiry has to be concentrated on the issue as to whether the mark which is complained of is “deceptively similar”, so as to warrant an order from the Court, stopping the user of such mark. The word "deceptively similar" has been defined under the Act and definition reads as follows : Sec. 2(d) “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 : The emphasis in the definition is apparently and very clearly based on the similarity of the marks, and such similarity must be of the nature, which is likely to deceive or cause confusion. But one thing is absolutely clear that deceit and confusion are obviously used with reference to the minds of the purchasers. State of mind of the person adopting the mark, at this stage assumes very little importance and it is not possible to accept the contention of Mr. Kadam that if adoption of the mark is fraudulent and finding to that effect can be arrived at on the material as available further inquiry must be stopped. Mr. Kadam has placed reliance on a passage appearing in the judgment of Parker-Knoll Ltd. v. Knoll International Ltd., referred to. It is observed in the said judgment as follows : Looking to the natural meaning of the words, I would make two observations : First, the offending mark must "so nearly resemble" the registered mark as to be "likely" to deceive or cause confusion. It is not necessary that it should be intended to deceive or intended to cause confusion. You do not have to look into the mind of the user to see what he intended. It is "its probable effect on ordinary people which you have to consider. No doubt if you find that he did intend to deceive or cause confusion, you will give him credit for success in his intentions. You will not hesitate to hold that his use of it is likely to deceive or cause confusion. But if he had no such intention, and was completely honest, then you will look carefully to see whether it is likely to deceive or cause confusion before you find him guilty of infringement. Secondly “to deceive” is one thing. To "cause confusion" is another., The difference is this: When you deceive a man, you tell him a lie. You make a false representation to him, and thereby, cause him to believe a thing to be true which is false. You may not do it knowingly, Or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You make a false representation to him, and thereby, cause him to believe a thing to be true which is false. You may not do it knowingly, Or intentionally, but still you do it, and so you deceive him. But you may cause confusion without telling him a lie at all, and without making any false representation to him. You may indeed tell him the truth, the whole truth and nothing but the truth, but still you may cause confusion in his mind, not by any fault of yours, but because he has not the knowledge or ability to distinguish it from the other places of truth known to him or because he may not even take the trouble to do so.” 4.11. In view of the above submissions learned Advocate for the appellant submitted that the appeal deserves to be allowed. 5. Mr. Khurana, learned Advocate for the respondent company submitted that the appellant had failed to point out any ground for order of injunction and was not entitled to any relief. According to him the appellant had not produced any evidence showing that the respondent had made any misrepresentation in any manner to pass off his services as that of the appellant to prospective customers of his or ultimate consumers of goods or services supplied by them. 5.1. He submitted that the respondent has been uninterruptedly using trade mark "MATRIX" since 1995 in marketing of Overseas Roaming Sim Cards and is the prior user in the services in marketing of Overseas Roaming Sim Cards. 5.2. According to him, since the respondent was the pioneer as service provider the Government of India had issued N.O.C. dated 23-3-2000 and the Reserve Bank of India also issued permission vide order dated 28-42000 to operate in Overseas Roaming Sim Cards. 5.3. He submitted that the respondent has an absolute protection to his trade mark, and therefore, no action for passing off can be attracted as sought by the appellant. 5.4. He submitted that the respondent was using the trade mark "MATRIX" since 1999 without any interruption and in the area of services, and therefore, it cannot be said that the business off the respondent under the said trade mark is with a view to pass off the goods of the appellant. 5.5. 5.4. He submitted that the respondent was using the trade mark "MATRIX" since 1999 without any interruption and in the area of services, and therefore, it cannot be said that the business off the respondent under the said trade mark is with a view to pass off the goods of the appellant. 5.5. According to him, the respondent is the bona fide and concurrent user of the trade mark, and therefore, protection under Sec. 34 has been given and even Sec. 12 of the trade mark states that in the case of honest and concurrent use or of other special circumstances which in the opinion of the Registrar make it proper to do, he may permit the registration by more than one proprietor of the trade mark which are identical or similar notwithstanding that such trade mark is already registered or not. 5.6. He submitted that the label or phonetic letters of both the trade marks are different. Graphic representation is different and both the companies are working on different lines. 5.7. According to him, the word "MATRIX" is a generic word and if somebody uses the word in the trade mark, he will not become the owner of the word and he cannot prevent the others from using such word. 5.8. He further submitted that the suit is still pending and the appellant has not made out any case for interim injunction and the trial Court has rightly rejected the interim injunction. 6. Before proceeding further, it is required to be noted that the present appeal is against the rejection of interim relief and the main suit is still pending. If this Court elaborately deals with the matter on merits it is likely that the same would prejudice the case of either side. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction. 6.1. Therefore, it is well settled law that this Court is not required to go into the merits of the entire matter at this stage and what is required to be seen is whether the appellant-plaintiff has made out a prima facie case or not for grant of interim injunction. 6.1. It is required to be noted that it is well settled law that the appellate Court may 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 principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The appellate Court will not re-assess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was' reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. 6.2. At this stage, it is required to be noted that in an action for passing off on the basis of unregistered trade mark, generally for deciding the question of deceptive similarity the following factors are 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 words. (b) The degree of resembleness 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 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. 7. (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. 7. At this stage, it is also required to be noted that a generic name describes something generally without designating the thing's source or creator, such as the word “car” or “sink”. A generic name cannot be protected as trade mark for the thing it denotes; e.g., "Apple" can be a trade mark for computers, but not for apples. The word in dispute in the present appeal is "MATRIX". The word "MATRIX" is defined in various dictionaries which are as under : 7.1. Black's Law Dictionary - 8th Edition Matrix - Civil Law - The original legal instrument, from which all copies must be made. A list of the parties to a law suit, including the addresses at which pleadings and notices can be served - A matrix is commonly used to list the names and addresses of creditors and other parties in a bankruptcy case. Many bankruptcy Courts have specific rules on how to prepare the matrix. 7.2. Chambers' Dictionary - New Edition Matrix - the place in which anything is developed or formed; that in which anything is embedded, such as ground-mass, gangue, intercellular, substance, cementing material; the bed on which a thing rests, such as the cutis under the nail, the hollow in a slab to receive a monumental brass; a mould, e.g. for casting printing type; a rectangular array of quantities or symbols; any rectangular array of quantities or symbols (math); any rectangular arrangement of data in rows and columns; 7.3. Merriam-Webster's Collegiate Dictionary -- Eleventh Edition Matrix - something within or from which something else originates, develops, or takes form; a mould from which a relief surface (as a piece of type) is made; an engraved or inscribed die or stamp; an electroformed impression of a phonograph record used for mass-producing duplicates of the original; the natural material (as soil or rock) in which something (as a fossil or crystal) is embedded; material in which something is enclosed or embedded (as for protection or study); the extracellurlar substance in which tissue cells (as of connective tissue) are embedded; the thickened epithelium at the base of a fingernail or toenail from which new nail substance develops; a rectangular array of mathematical elements (as the co-efficients of simultaneous linear equations) that can be combined to form sums and products with similar arrays having an appropriate number of rows and columns; something resembling a mathematical matrix esp. in rectangular arrangement of elements into rows and columns; an array of circuit elements (as diodes and transistors) for performing a specific function. 7.4. In view of the above, there is no dispute that the word "MATRIX" is a common word with various meanings in different fields, including intercellular substance. It is also a settled law that when the trade mark is common or descriptive, the same is not eligible for trade mark protection. I, therefore, prima fade find that the word "MATRIX" is not a coined word. 8. It is an admitted fact that the appellant submitted an application for registration of trade mark for the first time on 8-2-2000 which was opposed by the respondent. The second application submitted by the applicant on 1-2-2005 was opposed by the respondent on or about 25-10-2006. Therefore, it is apparent that the appellant-Company was in the knowledge that the respondent-Company is engaged in the service sector of the telecommunication. 8.1. In the same year, the respondent had applied for registration in Class-9 which was also opposed by the appellant. The said application is pending. Therefore, it is too early to come to a conclusion that the respondent is not entitled to use the word "MATRIX". According to the respondent they have been uninterruptedly using trade mark "MATRIX" since 1995 in Marketing of Overseas Roaming Sim Cards and is the prior user in the services in marketing of Overseas Roaming Sim Cards. Therefore, it is too early to come to a conclusion that the respondent is not entitled to use the word "MATRIX". According to the respondent they have been uninterruptedly using trade mark "MATRIX" since 1995 in Marketing of Overseas Roaming Sim Cards and is the prior user in the services in marketing of Overseas Roaming Sim Cards. They claim that they are having 20 offices in India and four representatives are working• abroad and about 850 employees are working in the company and the business has been expanded in more than 30 countries. It was pointed out that there are more than 1,25,000 customers using the Sim card "Matrix" and the turnover for the financial year 2008-2009 was recorded at Rs. 148 crores. Therefore, since 2005 there was steady growth of the respondent and the appellant was aware about their presence in the market. I am, therefore, of the view that the trial Court has not gone wrong in observing that the appellant had come forward seeking injunction after a pretty long time of nearly three years. 9. The appellant-Company is engaged in the business of manufacturing and trade in digital EPABX system, telephone instrument, voice Messaging Products, G.S.M. F.C.T. touters, public address systems, single and multiport G.S.M. gateways, etc. whereas the respondent-Company is engaged in a different sector of service. The customers of respondent are from a special class having different requirements. The services are provided to those who are travelling to abroad and who are visiting the country from other parts of the Globe. I am, therefore, of the view that the services provided by the defendant is distinct and dissimilar as found by the trial Court. Prima facie, it appears that the product of the appellant is not in such area and it has different characteristics, and therefore, there caru10t be any possibility of confusion between the goods of the plaintiff and the services provided by the respondent. 9.1. It is required to be noted that there is nothing on record to show that the respondent-Company is indulged in action of passing off it services as the goods for the plaintiff. Learned Advocate for the appellant is not able to point out anything from the record that the appellant-Company has sustained any loss or damages. 9.1. It is required to be noted that there is nothing on record to show that the respondent-Company is indulged in action of passing off it services as the goods for the plaintiff. Learned Advocate for the appellant is not able to point out anything from the record that the appellant-Company has sustained any loss or damages. It is also required to be noted that the law permits more than one parties for registration of trade mark in peculiar circumstances. 9.2. The name of the appellant is "Matrix Telecom Pvt. Ltd." and that of the respondent is "Matrix Cellular Services Pvt. Ltd.". The website/domain name of appellant is www.matrix.in and that of respondent is www.matrixtelesol.com. It, therefore, cannot be said that the domain name of the respondent is identical or similar and it is incapable of differentiating the domain name of the petitioner. There is clearly an extension of “telesol” along with the word “matrix”. I, therefore, find that there is no similarity in both the names and website and domain name and they can be clearly distinguished. It is also evident from the record that the respondent-Company has expanded its business independently and bona fidely without any intention to cause damage to the appellant's product. At the most it can be said that this is a case of concurrent use in bona fide manner by the respondent-Company. 9.3. It is also required to be noted that the appellant-Company is in the manufacture of goods as described in Class-9 whereas the respondent-Company is engaged in services comprised in Class-38. The mark "MATRIX" used phonetically by the appellant and it is used by the respondent quite differently displayed and depicted and there is no question of any confusion amongst the consumers. 9.4. One more aspect to be noted is that applications filed by the parties for registration of their respective trade marks and the rival objections thereto are, as stated hereinabove, pending for adjudication before the concerned authorities, and therefore, it will not be appropriate to grant injunction as prayed for by the appellant in these proceedings, at this stage. 9.5. It may be noted that in view of the peculiar facts and findings of this Court that there is prima facie difference in the use of the mark, "MATRIX", the judgments cited by the learned Advocate for the appellant is of no assistance to the appellant. . 9.6. 9.5. It may be noted that in view of the peculiar facts and findings of this Court that there is prima facie difference in the use of the mark, "MATRIX", the judgments cited by the learned Advocate for the appellant is of no assistance to the appellant. . 9.6. In sum and substance, the word "MATRIX" is not a coined word, but it is a generic word. Both the companies are in the same industry, the services of both the companies are entirely different one. The product of the appellant is not in such area and it has different characteristics, and therefore, there cannot be any possibility of confusion between the products of the appellant and the services provided by the present respondent. It must also be noted that the users are not illiterate or uneducated so as to cause any confusion. The product of the appellant has different characteristics which can be easily distinguished by the users. I am, therefore, of the view that the appellant has not made out any prima facie case. 10. Having considered the overall facts and circumstances of the case, I am of the view that it cannot be said that the balance of convenience is in favour of the appellant-plaintiff. Further, there is not an iota of evidence to show that if the injunction is refused, irreparable injuries would be caused to the appellant. 11. In the premises aforesaid, I do not find any merits in the present appeal. The appeal is, therefore, dismissed. Notice is discharged with no order as to costs. 12. Since, the main appeal is disposed of, the above Civil Application would not survive and is accordingly disposed of. (SBS) Appeal dismissed.