JUDGMENT : M.S. Ramachandra Rao, J. This Appeal is preferred assailing the order dt.06.01.2020 in I.A.No.1535 of 2018 in C.O.S.No.38 of 2018 on the file of the XIII Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar. 2. The appellant herein is the plaintiff in the said suit. 3. The appellant is a Private Limited Company which provides educational services to students under the name and style ‘Chirec Public School’ and ‘Chirec International School’. The case of the appellant 4. According to the appellant, it has been using the word mark ‘CHIREC’ since 20.02.1989 with specific and distinct colours and design and has earned great reputation over the years; that the said word ‘CHIREC’ is derived from ‘Children’s Recreation Centre’, an institution set up by the Promoter of the appellant prior to the establishment of the schools; the said mark had been exclusively used by the appellant since 1989 and it had gained a distinctive recognition and association with the mark and the rights in relation to the mark had exclusively vested with the appellant. 5. The appellant contended that it got the said trade mark registered vide trade mark registration No.3168471 dt.27.01.2016 under Class 41 of the Schedule to the Trade Marks Act, 1999 (for short, ‘the Act’); that such registration ensured that the mark is reserved for the exclusive use of the appellant in the field of education; that the appellant is running three campuses in Hyderabad where it offers education to large number of students and it offers choice of three curricula – (a) International Baccalaureate Diploma Programme (IBDP), (b) Cambridge International Examinations and (c) Central Board of Secondary Education (CBSE). 6. According to the appellant, in February 2017, it came to know that the respondent was using a mark identical with and deceptively similar to the appellant’s trade mark promoting educational services to students from Classes 1 to 10 at Madhugiri, Tumkur in Karnataka State. 7. The appellant alleges that the respondent is operating under the mark of ‘CHIREC PUBLIC SCHOOL’ and thus infringes the registered trade mark of the appellant by its unauthorized use of the word ‘CHIREC’ ; and such unauthorized use, according to the appellant, falls within the ambit of Section 29 of the Act. 7. The appellant alleges that the respondent is operating under the mark of ‘CHIREC PUBLIC SCHOOL’ and thus infringes the registered trade mark of the appellant by its unauthorized use of the word ‘CHIREC’ ; and such unauthorized use, according to the appellant, falls within the ambit of Section 29 of the Act. It is alleged by the appellant that the use of the term ‘CHIREC’ by the respondent in its business is identical with the appellant’s trade mark and is causing confusion among the public leading to a false presumption of association with the appellant’s schools; that the respondent is not a permitted user nor a prior user of the said word ‘CHIREC’; and the appellant is entitled to safeguard its right of the exclusive use of the trade mark under Section 28 of the Act. 8. The appellant had issued a notice to cease and desist on 17.02.2017 to the respondent demanding the respondent to abstain from the use of the mark ‘CHIREC’ in the running of its school and it is contended that the respondent replied to the said notice on 09.03.2017 refusing to comply with the same. 9. Therefore, the above suit was filed in June, 2018 seeking the following reliefs: “(a) Declaring that the Defendant has infringed the registered trade mark of the Plaintiff by using “CHIREC” as part of its trade name or business; (b) Granting a permanent injunction, restraining the Defendant, by themselves, their servants, agents or anyone claiming through them from engaging in the services listed under Trade mark Class 41, using the mark ‘CHIREC’ or any other similar sounding mark in the course of their business and from infringing the Plaintiff’s registered trade mark; (c) Directing the Defendant to pay the Plaintiff damages of Rs.1 Crore for infringing the Plaintiff’s registered trade mark, (d) Directing the Defendant to pay to the Plaintiff the costs of the suit, and (e) Pass such further or other order, as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.” 10. The appellant also filed I.A.No.1535 of 2018 along with the plaint invoking Order XXXIX Rules 1 and 2 CPC and also Section 135 of the Act for grant of an ex parte ad interim injunction restraining the respondent from engaging in the services listed under Trade Mark Class 41, using the mark ‘CHIREC’ or any other similar sounding mark in the course of their business, and from infringing the appellant’s registered trade mark till the disposal of the suit. It reiterated the contents of the plaint in the said Application. The case of the respondent 11. Written statement was filed in the suit by the respondent opposing grant of the relief to the appellant. 12. In the Written Statement, the respondent contended that it is not correctly described in the plaint; that the respondent is a registered Charitable Trust by name Pavan Education and Charitable Trust, and the appellant had not described the respondent properly; and so the suit is liable to be rejected for mis-joinder of necessary parties. 13. It was denied by the respondent that the appellant was using the word ‘CHIREC’ for educational activities for the last 29 years and it was also denied that the appellant’s trade mark had acquired any reputation, goodwill or transborder reputation beyond Hyderabad. 14. It is contended that the respondent is carrying on activities of running educational activities since 2005 in the State of Karnataka in Tumkur District in Madhugiri, a backward Taluk to impart education to rural masses; that the respondent, after making thorough search in the trade mark registry, adopted the trade mark ‘CHIREC’ for running schools and started using the same after noticing in 2005 that none had been using the said trade mark ‘CHIREC’ for running schools. 15. The respondent contended that it is not operating beyond Madhugiri Taluk of Tumkur District in Karnataka State; that it is only having an English Medium school where the students would take Karnataka State Board Examination and since the appellant was allegedly imparting education in International syllabus and CBSE, there would not be any confusion as alleged by the appellant. 16. The respondent contended that there would be no confusion in the minds of parents and there cannot be any impression in the minds of general public that the respondent had adopted the word ‘CHIREC’ only to mislead the parents. 17. 16. The respondent contended that there would be no confusion in the minds of parents and there cannot be any impression in the minds of general public that the respondent had adopted the word ‘CHIREC’ only to mislead the parents. 17. According to the respondent, its adoption of the trade mark ‘CHIREC’ is honest and concurrent user over a period of 13 years and it had no knowledge of existence of another school by the same name and so the respondent is also entitled to use the same. 18. It is contended that the fonts adopted by the appellant and the respondent are totally different, the colour combination used by the appellant and that of the respondent for their respective logos are totally different, and there would not be any confusion. 19. It is contended that the fee charged for students admitted in it’s school by the respondent is nominal because it is a Charitable organization and it is denied that it is encashing on the reputation of the appellant by adopting similar name. 20. According to the respondent, the term ‘CHIREC’ is short form of “CHILDREN EDUCATION CENTRE”; that parents would not be carried away by use of name unlike in the case of consumer goods and the parents who would be well educated would thoroughly go through the advertisements, brochures and curriculum apart from medium of instruction, etc., before admitting their children into the school; use of similar name in a different State cannot be said to be causing confusion when it is purely accidental and honest user; and it would not amount to infringement of the registered trade mark of the appellant. 21. It is contended by the respondent that the appellant had made an application for registration of its trade mark on 27.01.2016 claiming user from 20.02.1989 without producing any evidence; that the Registrar of Trade Marks raised an objection stating that the same trade mark is deceptively similar to another registered trade mark; and the appellant, without producing any evidence, had obtained registration of the trade mark. It is contended that the appellant did not come with clean hands; that its registration of the trade mark ‘CHIREC’ was defective and was liable to be rectified. 22. It is contended that the appellant did not come with clean hands; that its registration of the trade mark ‘CHIREC’ was defective and was liable to be rectified. 22. It is also contended that the appellant failed to prove prima facie case; that the suit is barred by limitation and also hit by delay and laches and there is lack of jurisdiction for the Court below to entertain the suit in view of Section 134 of the Act. 23. Counter affidavit was filed in I.A.No.1535 of 2018 reiterating the contents of the written statement. Rejoinder of the appellant 24. Rejoinder was filed by the appellant stating that the appellant was not aware of the existence of any charitable trust as was claimed by the respondent; that the appellant came to know of it only through the written statement filed by the respondent; and such trust can always seek to implead itself in the suit. 25. It is stated that the respondent had not made any attempt to get a registered trade mark in their favour, but is infringing the appellant’s registered trade mark, which is inventive and unique to the appellant and the defence of the concurrent and honest usage cannot be accepted. The order of the Court below 26. By order dt.06.01.2020, the Court below dismissed I.A.No.1535 of 2018. 27. After referring to the contentions of both sides, the Court below referred to the claim of the appellant that its trade mark is registered on 27.01.2016 and the contention of the respondent that it has been using the name ‘CHIREC’ since 2005. It also took note of the contention of the appellant that it is using the said trade mark since 1989 and observed that until and unless full-fledged trial is held, the contention of the appellant with regard to the use of the logo by the respondent cannot be established. 28. It also took note of the contention of the appellant that it is using the said trade mark since 1989 and observed that until and unless full-fledged trial is held, the contention of the appellant with regard to the use of the logo by the respondent cannot be established. 28. It agreed with the contention of the respondent that a comparative study of the trade mark used by both parties showed that the respondent is using the word ‘CHIREC’ with a logo on both sides of the name and their name is written only in blue colour with same font, while the trade mark used by the appellant is in different colours, i.e., red, green and blue and the description of the name ‘CHIREC’ is in different font in different style and the term is used without any logo. 29. It observed that the parents of the children who would admit their wards into the schools are not illiterates and they would not be carried away by the use of name ‘CHIREC’, particularly when the curricula of both schools are different and when the respondent is using the name only in the District of Tumkur in Madhugiri Taluk, a remote place of Karnataka State, while the appellant is running the school in the city of Hyderabad. 30. It also held that the respondent was imparting education only in Karnataka State Board syllabus from Classes 1 to 10, but the appellant is an International School and is teaching CBSC and other International syllabi, and the appellant was also charging more fee than was being charged by the respondent. 31. It observed that since the respondent was a Charitable Trust, it is charging a minimum fee and it would normally admit students of middle class or lower middle class families who would not be carried away by the name of the school unlike parents who would admit their children in the school of the appellant, who are likely to be more prosperous since they would have to pay higher rate of fee and who would be interested in getting their children CBSE or other international syllabi. 32. It took note of the contention of the respondent that it has been using the said trade mark since 2005, while the registration was obtained by the appellant in the year 2016 long afterwards. 32. It took note of the contention of the respondent that it has been using the said trade mark since 2005, while the registration was obtained by the appellant in the year 2016 long afterwards. It observed that unless a full-fledged trial is conducted, it would not be possible for the Court to come to a conclusion either way. 33. According to the Court below, education is not a product of consumption, such as medicine or food item and a customer would not be misled since the issue relates to an educational institution. 34. It therefore concluded that the appellant did not establish prima facie that the adoption of the trade mark by the respondent is itself with a dishonest intention, and that at the stage of considering the interim application, it is not possible to come to any conclusion without trial. It also observed that if temporary injunction is granted, the academic year of the students of the respondent would be jeopardized and the respondent would be prevented from using such logo and it has to also go for change of name and obtain various permissions from various authorities to run the school. 35. Assailing the same, this Appeal is filed. The consideration by the Court 36. Heard Sri Avinash Desai, counsel for the appellant and Sri M.Rammohan, counsel for the respondent. 37. In the plaint, the appellant had described the respondent merely as ‘M/s Chirec Public School’ without indicating whether it is a Company under the Companies Act or a firm or a proprietary concern. 38. When the respondent had indicated in the written statement that the school M/s. Chirec Public School mentioned as defendant in the Written statement is being run by the trust called Pavan Education and Charitable Trust and the material filed along with the appeal also proves the said fact prima facie, the appellant should have at least taken steps to implead the said trust as a party to the suit, instead it had filed a rejoinder stating that it was not aware of the said trust running the school and the trust can get itself impleaded in the suit. 39. In our considered opinion, the proper party in this suit is the said trust prima facie and in spite of being informed about it, the appellant chose not to implead the said trust. This reluctance on the part of the appellant is inexplicable. 39. In our considered opinion, the proper party in this suit is the said trust prima facie and in spite of being informed about it, the appellant chose not to implead the said trust. This reluctance on the part of the appellant is inexplicable. The trial court did not notice this aspect. 40. This Court noticed that the plaint filed in the paper book did not mention what documents were filed by the appellant along with the plaint. In I.A.No.1535 of 2018 also no documents were marked in the said I.A. by both sides, though some of the documents filed by both parties had been adverted to in the impugned order by the Court below. Though counsel for the appellant sought to contend that this Court should allow the appeal and remit the matter back to the Court below on account of omission of the Court below to mark the documents filed by the parties, we do not think that such a course of action is appropriate for the following reasons. 41. No doubt, the appellant is contending that it is using the trade mark ‘CHIREC’ since 1989 and that it had obtained registration of the said trade mark on 27.01.2016. 42. In the paper book filed in this case, certain documents including the certificate of registration of the trade mark ‘CHIREC’ granted on 27.1.2016 are filed apart from other documents dealing with affiliation, curriculum, honours which the school obtained, etc. 43. The respondent, on the other hand, is contending that it has been using the name ‘CHIREC’ since 2005 and claims to have made thorough search in the trade mark registry before adopting the trade mark ‘CHIREC’ for running schools and pleaded that it was using the said trade mark after noticing that nobody was using the said trade mark for running schools. 44. 44. The documents placed on record also indicate that Pavan Education and Charitable Trust, Madhugiri, which is running the respondent school, was granted permission on 26.04.2005 by the Block Education Officer, Madhugiri to start Kannada Medium pre-primary school from Classes 1 to 5; renewal of recognition for the said classes was granted on 01.12.2016 not only in Kannada Medium but also in English Medium and adoption of the name ‘Chirec Public School’ by the said trust from 23.08.2007 after obtaining registration under the Karnataka Education Act, 1983 of the said name with Karnataka State Public Institutions Department, Bengaluru. Subsequent renewals granted in 2013 by Zilla Panchayath, Tumkur on 30.10.2013 to the said school and permission to teach up to 10th class granted on 28.05.2014 by the Deputy Director, Public Education Department, Tumkur have also been filed. 45. So prima facie it appears that the respondent has been using the name ‘CHIREC’ from at least 2007 from the documents filed by the appellant before this Court though it has been running the said school from 2005. As already noted, the registration of the trade mark ‘CHIREC’ by the appellant is only in 2016. 46. Except one newspaper advertisement allegedly published in Deccan Chronicle newspaper on 04.11.1989 about its nursery school, no material is filed to show that the appellant has been using the word ‘CHIREC’ in their school for imparting education to Classes 1 to 10 from 1989 prima facie. In any event, in 1989, the appellant had no registered trade mark for the said term. 47. The Court below as well as this Bench had perused the trade mark being used by both the parties. Prima facie it appears that the respondent is using the word ‘CHIREC’ with a logo and its name is written only in blue colour with same font, but the appellant is using the said trade name with different style and with different font without any logo. 48. Therefore, it is unlikely that the parents of the children who would admit their children into the schools would be misled into thinking that the respondent is using the appellant’s trade mark particularly when the curricula being adopted by both schools are different. According to the respondent, it is imparting education from Classes 1 to 10 with Karanataka State Board syllabus, while the appellant states that it is imparting education in International syllabi apart from CBSE. According to the respondent, it is imparting education from Classes 1 to 10 with Karanataka State Board syllabus, while the appellant states that it is imparting education in International syllabi apart from CBSE. Also, the fee charged by the appellant is much higher than that of the respondent. 49. The respondent is confining use of the name ‘CHIREC’ only in Madhugiri Taluk in Tumkur District of Karnataka State which is a remote place more than 100 KM from Bengaluru city as per google maps, whereas the appellant is located in the city of Hyderabad. This is also a factor which cannot be ignored. It is prima facie unlikely that the people who intend to admit their children in the respondent school would go by the alleged reputation of the appellant in the city of Hyderabad or elsewhere. 50. In these circumstances, the defence of prior user and concurrent and honest user raised by the respondent since 2005 cannot be simply brushed aside. 51. Prima facie we are of the opinion that the use of the trade mark ‘CHIREC’ by the respondent is an honest concurrent user since 2005 and since the registered trade mark is obtained only in 2016 and the suit is filed is 2018, the Court below rightly refused to grant any interim relief to the appellant. 52. Therefore, for all the aforesaid reasons, we find no merit in the appeal and it is accordingly dismissed. 53. However it is made clear that observations / findings made in this order shall not influence the court below while deciding the suit. 54. Pending miscellaneous petitions, if any, in this Appeal shall also stand dismissed. No costs.