JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Commercial Court, Vadodara dated 07/02/2017 below Exh. 5 in TMC.S. (Comm.) No. 10/2016 by which the learned Judge has rejected the said application, Exh. 5 and has refused to grant the injunction as prayed for in the application, Exh. 5, appellant - original plaintiff has preferred the present Appeal from Order. 2. The facts leading to the present Appeal from Order in nutshell are as under; 2.1 The appellant herein - original plaintiff (hereinafter referred to as "the original plaintiff") has instituted TMC.S. (Comm) No. 10/2016 in the Commercial Court at Baroda against the respondent herein - original defendant (hereinafter to as "the original defendant") for permanent injunction, infringement and passing off of trade mark and damages. Original plaintiff is dealing and engaged in the business of manufacturing and marketing of readymade garments, sarees and dress materials at Surat. Original defendant is also engaged in the similar business and is also carrying on the business at Surat. It has been averred in the suit that the predecessors of the original plaintiff, M/s. Apple Fashion, for the purpose of their business of readymade garments, sarees and dress materials have adopted the trade mark "APPLE FASHION" with Logo "F" in the year 1996 and were bonafidely using the same in the Indian Market, which in turn earned the enviable reputation and goodwill. It is further averred in the suit that the business of manufacturing and selling readymade garments, sarees and dress materials was first started by the predecessors of the original plaintiff and subsequently acquired by the present original plaintiff by virtue of necessary documents of assignments. Original plaintiff applied for registration before the Registrar of Trade Marks, Ahmedabad for the specification of goods readymade garments in class 25 under trade mark No. 2578903 and the same came to be registered, and therefore, it is claimed by the original plaintiff that the original plaintiff is a registered proprietor of trade mark with the word "APPLE FASION" with Logo "F". It is further averred in the suit that the original plaintiff came to know through the media advertisement and other trade literatures that the original defendant has started similar line of business of manufacturing and selling sarees and dress materials at Surat and the name "APPLE" has been deliberately adopted by original defendant as both the trade mark and trade name by the original defendant is to detract the customers base of the original plaintiff. It is further averred in the suit that the use of identical/similar trade name "APPLE" by the original defendant in relation to similar nature and description of goods is likely to deceive or cause confusion to the customers and thus under misrepresentation caused by the original defendant's act, the goods of the original defendant are likely to pass off to the existing and prospective customers under the belief that the original plaintiff and original defendant are one and the same person, and therefore, the original plaintiff instituted the aforesaid suit for infringement, permanent injunction and passing off of trade mark "APPLE" against the original defendant. 2.2 In the said suit the original plaintiff submitted an application, Exh. 5 for temporary injunction restraining the original defendant from carrying on the business of manufacture and sale of readymade garments, sarees and dress materials and displaying the trade mark "APPLE". Original plaintiff prayed for the following interim injunctions; "(a) The respondents their properties, or partners, or directors may be restrained temporarily from carrying any business of manufacture and sale of readymade garments, sarees and dress materials by displaying trade mark APPLE, trading style APPLE SAREES, packing or marketing, either directly or indirectly through their agents, sub agents, dealers, distributors, stockiest, super stockiest, sole selling agents or any other marketing representatives associated to their organization, under the Trade Mark/Trade Name APPLE SAREES with the word APPLE and/or any other trade mark/trade name which is deceptively or confusingly similar to the applicants trade mark/trade name consisting of the word APPLE and from causing infringement and/or passing off of the goods with such or any other similar name. (b) The respondents may be temporarily restrained from carrying/publishing any advertisement, promotions, campaigning of similar label/word with the trade mark/trade name APPLE SAREES with the word APPLE. (c) The respondents may be temporarily restrained from interfering with the legal rights of the applicants in any manner. (b) The respondents may be temporarily restrained from carrying/publishing any advertisement, promotions, campaigning of similar label/word with the trade mark/trade name APPLE SAREES with the word APPLE. (c) The respondents may be temporarily restrained from interfering with the legal rights of the applicants in any manner. The respondents may be ordered to file statement of accounts and assets on affidavit and be temporarily restrained from disposing of or dealing with their assets in a manner which may adversely affect the applicants ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the applicants. (d) Ad-interim orders in terms of prayers (a) to (c) as above." 2.3 The application, Exh. 5 was vehemently opposed by the original defendant. It was submitted that the original defendant is having the trade mark "APPLE" in their favour with respect to class 24 i.e. dress materials and sarees. However, the original plaintiff is having the registered trade mark in the name of "APPLE FASHION" with Logo "F" in class 25 i.e. readymade garments. It was further submitted that they are carrying on business since 2010 and the suit has been instituted in the year 2016. It was further submitted that even the original plaintiff has not come with clean hands and has suppressed the material fact and has wrongly pleaded that the cause of action has arisen recently. It was submitted that the original plaintiff was in the knowledge that the original defendant is carrying on business by using the registered trade mark "APPLE" in class 24 since many years and in fact even caution notice was published by the original defendant as far back as in the year 2013, which has been specifically suppressed by the original plaintiff. It was further submitted that even when the original defendant submitted the application for registration of the trade mark "APPLE" in class 25, the same was resisted by the original plaintiff and the same has not been disclosed by the original plaintiff, and therefore, it was requested to dismiss the application, Exh. 5. By the impugned order the learned Commercial Court has rejected the application, Exh. 5 on the ground of suppression of material fact by the original plaintiff and also on the ground of delay and that the original plaintiff has not come with clean hands, and therefore, is not entitled to the discretionary relief of injunction. 5. By the impugned order the learned Commercial Court has rejected the application, Exh. 5 on the ground of suppression of material fact by the original plaintiff and also on the ground of delay and that the original plaintiff has not come with clean hands, and therefore, is not entitled to the discretionary relief of injunction. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Commercial Court below Exh. 5 in rejecting the same and refusing to grant the interim injunction, the appellant herein - original plaintiff has preferred the present Appeal from Order. 3. Shri Harshil Dantani, learned advocate has appeared for Shri C.M. Ankolekar, learned advocate appearing on behalf of the appellant herein - original plaintiff and Ms. Rushvi N. Shah, learned advocate has appeared on behalf the respondent herein - original defendant. 4. Shri Harshil Dantani, learned advocate appearing on behalf of the appellant - original plaintiff has vehemently submitted that in the facts and circumstances of the case, the learned Commercial Court has materially erred in rejecting the application, Exh. 5 and in not granting the injunction as prayed for. It is vehemently submitted by Shri Dantani, learned advocate appearing on behalf of the original plaintiff that as such the original plaintiff and its predecessors were prior using the trade mark "APPLE", and therefore, the original defendant, who had started using the trade name "APPLE" subsequently cannot be permitted to use the trade name "APPLE", which is deceptively similar to that of the original plaintiff. It is submitted that therefore a clear case of passing off has been made out by the original plaintiff, and therefore, the learned Commercial Court ought to have granted the injunction as prayed for. It is further submitted that as such the learned Judge has materially erred in rejecting the application, Exh. 5 on the ground that the original plaintiff has not come out with clean hands and/or has suppressed the material fact. It is further submitted by Shri Dantani, learned advocate appearing on behalf of the appellant that the original defendant is using the trade name "APPLE", which is a registered trade mark of the original plaintiff and which the original plaintiff and its predecessors were using since 1996. It is further submitted by Shri Dantani, learned advocate appearing on behalf of the appellant that the original defendant is using the trade name "APPLE", which is a registered trade mark of the original plaintiff and which the original plaintiff and its predecessors were using since 1996. If the original defendant is permitted to sell their goods with the trade name "APPLE" the customers of the original plaintiff shall be deceived and the original defendant will sell the goods as if the same is of the original plaintiff. It is further submitted by Shri Dantani, learned advocate appearing on behalf of the original plaintiff that while deciding the application, Exh. 5, the learned Judge has not properly appreciated the scope and ambit of the Court considering the interim injunction in a suit for passing off. It is submitted that when there is a likelihood of deception or confusion and in view of the likelihood, possibility and creation of an impression of the connection of the original defendant Company with the original plaintiff and the possibility of prejudicial effect on the original plaintiff's business and trading activities, the original plaintiff is entitled to interim injunction restraining the original defendant - Company from using the trade name, which is being used by the original plaintiff. 4.1 It is further submitted that in the present case the learned Judge has not properly appreciated and/or considered the relevant particulars of law of granting the interim injunction in trade mark and trade name disputes. 4.1 It is further submitted that in the present case the learned Judge has not properly appreciated and/or considered the relevant particulars of law of granting the interim injunction in trade mark and trade name disputes. In support of his above submissions he has relied upon the following decisions of the Hon'ble Supreme Court, Bombay High Court, Delhi High Court and the Calcutta High Court; "(i) Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. reported in (2009) 2 SCC 147 ; (ii) Laxmikant V. Patel v. Chetanbhai Shah and Another reported in (2002) 3 SCC 65 ; (iii) Midas Hygiene Industries (P) Ltd. and Another v. Sudhir Bhatia and Others reported in (2004) 3 SCC 90 ; (iv) Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. reported in AIR 2001 SC 1952 ; (v) N.R. Dongre and Others v. Whirlpool Corporation and Another reported in 1996 AIR SCW 3514; (vi) M/s. Hiralal Parbhudas v. M/s. Ganesh Trading Company and Others reported in AIR 1984 BOMBAY 218 (vii) Amar Nath Chakroborty v. Dutta Bucket Industries & Others” Making the above submissions, it is requested to admit/allow the present Appeal from Order and consequently allow the application, Exh. 5 and grant the interim injunction as prayed in the application, Exh. 5. 5. The present Appeal from Order is vehemently opposed by Ms. Rushvi N. Shah, learned advocate appearing on behalf of the respondent herein - original defendant. It is submitted that in the present case and in the facts and circumstances of the case, the learned Commercial Court has not committed any error in rejecting the application, Exh. 5. It is submitted that while rejecting the application, Exh. 5 the cogent reasons have been given by the learned Commercial Court and after considering the balance of convenience etc. the learned Commercial Court has rejected the application, Exh. 5 and has refused to grant the interim injunction as prayed for, and therefore, the same is not required to be interfered with by this Court, and therefore, the same does not call for any interference by this Court. 5.1 It is further submitted that as such the original plaintiff had suppressed the material facts and had not come with clean hands, and therefore, the learned Judge has rightly rejected the application, Exh. 5. It is further submitted by Ms. 5.1 It is further submitted that as such the original plaintiff had suppressed the material facts and had not come with clean hands, and therefore, the learned Judge has rightly rejected the application, Exh. 5. It is further submitted by Ms. Shah, learned advocate appearing on behalf of the original defendant that as such the original plaintiff had suppressed the material facts and had not come with clean hands, and therefore, the learned Judge has rightly rejected the application, Exh. 5. It is further submitted by Ms. Shah, learned advocate appearing on behalf of the original defendant that as such the original defendant is having the registered trade mark "APPLE" in their favour in category/class 24 i.e. dress materials and sarees and they are in the business of dress materials and sarees. It is submitted that now so far as the original plaintiff is concerned, they were having the registered trade mark in the name of "APPLE" with Logo "F" in class 25 i.e., readymade garments. It is submitted that when the original defendant is also having the registered trade mark in the name of "APPLE" in class 24 i.e., dress materials and sarees, the original defendant cannot be restrained from using their registered trade mark/trade name "APPLE" in class 24. It is submitted that even there cannot be any monopoly over the word "APPLE" and even while registering the trade mark "APPLE" in favour of the original plaintiff it was conditional registered trade mark and without prejudice to the rights of other persons in using the name "APPLE". It is submitted that even otherwise there is no resemblance between the trade mark used by the original plaintiff "APPLE" with Logo "F" and the trade mark "APPLE" used by the original defendant. It is further submitted that even on the ground of delay and laches also the original plaintiff is not entitled to the interim injunction. It is submitted that the original defendant is carrying on business since 2010 and even in the year 2013 caution notice was published in the newspaper by the original defendant. It is further submitted that even on the ground of delay and laches also the original plaintiff is not entitled to the interim injunction. It is submitted that the original defendant is carrying on business since 2010 and even in the year 2013 caution notice was published in the newspaper by the original defendant. It is further submitted that even the original defendant is carrying on the business in the same city i.e. Surat, and therefore, as such, the original plaintiff was in knowledge that the original defendant is using the trade name/mark "APPLE" since 2010 and/or even at least since 2013 and despite the above, the suit has been preferred in the year 2016. It is submitted that despite the above, the original plaintiff has made false averments while pleading the cause of action to the effect that recently they came to know that the original defendant is using the trade mark/name "APPLE". It is submitted that therefore when the original plaintiff had not come with clean hands and has suppressed the material facts, the learned Commercial Court has rightly rejected the application, Exh. 5. Making the above submissions, it is requested to dismiss the present Appeal from Order. 6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that though the entire suit is based with allegations that the original defendant is using the trade mark in the name of "APPLE", which the original plaintiff and/or its predecessors were using since 1996, however, it is required to be noted that the original plaintiff is having registered trade mark in the name of "APPLE" with Logo "F" in class 25 i.e. readymade garments and the original defendant is having registered trade mark in the name of "APPLE" in class 24 i.e. dress materials and sarees. As rightly observed by the learned Commercial Court, there cannot be any monopoly over the word "APPLE". As rightly observed by the learned Commercial Court, there cannot be any monopoly over the word "APPLE". Considering the material on record, we are of the opinion that there is no resemblance between the trade mark of the original plaintiff i.e. "APPLE" with Logo "F" and trade mark "APPLE" used by the original defendant, and therefore, prima facie, we are of the opinion that there is no likelihood of any confusion in the mind of the customers and/or by using the trade mark "APPLE" by the original defendant, customers are not likely to be deceived. Under the circumstances, the learned Commercial Court has rightly refused to grant the injunction as prayed for. 6.1 From the impugned order passed by the learned Commercial Court, it appears that while rejecting the application, Exh. 5 what has been weighed with the learned Commercial Court is as under; "(a) that the registered trade mark in favour of the original plaintiff in the name of "APPLE" with Logo "F" is with respect to class 25 i.e. readymade garments; (b) that the original defendant is having the registered trade mark in the name of "APPLE" in class 24 i.e. dress materials and sarees; (c) that there cannot be any monopoly in the word "APPLE"; (d) that there was suppression of material fact on the part of the original plaintiff and true and correct facts had not been disclosed by the original plaintiff. Original plaintiff had suppressed the fact that the objections were raised by the original plaintiff before the Registrar against the application submitted by the original defendant to get the trade mark registered in class 25; (e) that the original plaintiff had suppressed the fact that in the year 2013 the original defendant had given a caution notice in which it was specifically mentioned that the original defendant is using the trade name/trade mark in the name of "APPLE"; (f) that there is no resemblance between the trade mark used by the original plaintiff i.e. "APPLE" with Logo "F" and trade mark "APPLE" used by the original defendant; (g) that the original defendant is carrying on business in dress materials and sarees since 2010 and even in the year 2013 when the caution notice was given by the original defendant it was specifically mentioned that the original defendant was carrying on business in the name of "APPLE" and despite the above in the cause of action pleaded in the suit it is mentioned that the recently the original plaintiff came to know that the original defendant is carrying on business in the name "APPLE", and therefore, the suit has been preferred in the year 2016, and therefore, the original plaintiff has not come out with clean hands and has made incorrect statements and/or pleadings; (h) that the delay has not been explained, and therefore, the original defendant cannot be restrained from using the trade name "APPLE" while doing business in dress materials and sarees, which they are carrying on since 2010 and the suit has been preferred in the year 2016;" 6.2 Considering the aforesaid facts and circumstances of the case, it cannot be said that the learned Commercial Court has committed any error in refusing to grant the interim injunction. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court, Bombay High Court, Delhi High Court and Calcutta High Court referred to hereinabove are concerned, in the facts and circumstances of the case narrated hereinabove, more particularly, when there is no resemblance between the trade mark used by the original plaintiff i.e. "APPLE" with Logo "F" and the trade mark "APPLE" used by the original defendant and the original defendant is having the registered trade mark "APPLE" in class 24 i.e. dress material and sarees and the original plaintiff is having registered trade mark in the name "APPLE" with Logo "F" in class 25 i.e. readymade garments, none of the decisions shall be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the original plaintiff. 6.3 Now so far as the decisions relied upon by the learned advocate appearing for the appellant referred to hereinabove are concerned, in facts and circumstances of the case stated hereinabove, none of them shall be of any assistance to the appellant. 7. In view of the above and for the reasons stated hereinabove, the present Appeal from Order deserves to be dismissed and is accordingly dismissed. CIVIL APPLICATION No. 4040/2017 In view of dismissal of the Appeal from Order, Civil Application stands dismissed. Appeal Dismissed