JUDGMENT : (N.V. Anjaria, J.) 1. The challenge in this Appeal from Order is directed against order dated 27.1.2022 passed by learned Special Judge, Commercial Court - 8th Additional District Judge, Ahmedabad (Rural) at Mirzapur, below Exh.5 in Trade Mark Suit No.8 of 2021, whereby the commercial court below allowed interim injunction application of the plaintiff- respondent herein. 2. The commercial court below, restrained the defendants from providing and offering for sale the product sizzlers by using similar trade dress, secrets, recipe, etc. thereby from committing the act of passing off the product and services of the plaintiff. 3. The respondent- original plaintiff instituted trade mark suit against the appellants for permanent injunction to restrain the defendants their agents and distributors from misusing, acquiring and/or offering for sale the product sizzlers to others as well as to customers by using trade dress, data and trade secrets, that is recipe and from advertising, marketing, exposing his business with identical and deceptively similar trade dress and trading style as of the plaintiff’s trade dress, style, secrets, recipe and customer data and from committing the act of passing off. The relief was prayed for accounts of profit and for damages to the goodwill of the plaintiff because of using identical and deceptively similar trade dress, style, secrets etc. 3.1 The plaintiff also filed interim injunction application in the said suit praying for ad-interim injunction to restrain the defendants from their agents and servants from misusing, acquiring and offering for sale sizzlers products, using similar data and trade secrets, thereby to restrain the defendant from committing the act of passing off. 3.2 In the plaint as well as in the injunction application, it was the case pleaded by the plaintiff that the plaintiff was engaged in the business of running a restaurant in the name ‘Yanki’ since 2.7.2012. Initially the business was in personal and later came to be converted into ‘Yanki Sizzlers Private Limited’ along with rights, goodwill, trade dress etc. The business was run at the address of Thaltej, Ahmedabad. 3.2.1 The trademark ‘Yanki Sizzlers’ came to be registered with No.2417168 dated 23.10.2015 showing the user since 8.5.2012 under Class-43 which includes restaurants. As stated above, the sole proprietorship was converted into a company on 31.8.2017. It was further averred that the plaintiff started another branch also at H.L.Commerce College, Navrangpura, Ahmedabad. 3.2.1 The trademark ‘Yanki Sizzlers’ came to be registered with No.2417168 dated 23.10.2015 showing the user since 8.5.2012 under Class-43 which includes restaurants. As stated above, the sole proprietorship was converted into a company on 31.8.2017. It was further averred that the plaintiff started another branch also at H.L.Commerce College, Navrangpura, Ahmedabad. For that purpose, it was stated, the plaintiff applied for loan at Rs.10 crores. Towards repayment of the loan, the plaintiff gave undertaking and for assurance purposes, he further gave leave and licence agreement of the owners of the property. The owners of the property were defendant Nos.2 and 3, the appellants herein. 3.2.2 It may be stated at this stage that appellant No.2 and 3- owners of the commercial premises had been running a restaurant in the name and style of Kitchen Kraft from 2009 and 2012. Since that time, they also had been serving the food item known as ‘sizzlers’. The plaintiff started business in the restaurant with name Yanki on 2.7.2012. 3.2.3 While defendant Nos.2 and 3 were the owners of the restaurant premises, defendant Nos.4 and 5 stood as the employees of the plaintiff since the start of restaurant business by the plaintiff in the year 2012. They were named Manager and Captain respectively. When the second branch was started at H.L.Commerce College, the second person who was the captain, also came to be designated as Manager. It was the case of the plaintiff that both were handling secret recipes, secret trade dress, menu, price, customer data etc. It was the case that defendant Nos.4 and 5 had a fiduciary relationship with the plaintiff. Leave and licence agreement came to be executed between defendant Nos.2 and 3 and plaintiff on 28.8.2017 for a period of four years, from 1.7.2017 to 30.6.2021. It inter alia stipulated thirty days prior notice for terminating the agreement. It was stated that business was run at both the places smoothly. 3.2.4 It was alleged that with execution of licence agreement upto June, 2021 as above, the relationship of defendant Nos.2 and 3 with plaintiff also became fiduciary in nature. It was stated that plaintiff paid regular licence fees since 2012 till March, 2020. It was the further case that due to pandemic and imposition of lockdown from March, 2020 by the authorities, the restaurant was closed. It was stated that plaintiff paid regular licence fees since 2012 till March, 2020. It was the further case that due to pandemic and imposition of lockdown from March, 2020 by the authorities, the restaurant was closed. It was stated that plaintiff visited the rented premises at Thaltej and was shocked to find to his surprise that in place of plaintiff’s board, ‘Yanki Sizzlers’, the board in the name of ‘Sazzy Sizzlers’ was replaced. It was stated that plaintiff tried to enter the premises, but all the defendants stopped the plaintiff and denied the entry. 3.2.5 It was the case that plaintiff had not vacated the premises and notice for termination was never given. It was the allegation that the defendant removed books, furniture, etc. It was stated that the plaintiff had earned reputation and goodwill in selling the sizzlers, however, by mis-conducting by committing illegal act, and by stealing the trade secrets, that is recipe, data of customers, etc., defendants committed breach of trust, taking advantage of the fiduciary relationship. It was alleged that they committed an act of passing off by using customer data, deceptively similar trade dress and by misusing trade secret of the plaintiff’s business including the recipe for sizzlers, starting similar type of business to serve the sizzlers. 3.3 Appellants- defendants filed their written statement, and also the reply to injunction application contending inter alia that no act of passing off was committed by defendants. It was submitted that plaintiff twisted the meaning of two common words, that is, ‘Yanki’ and ‘Sizzlers’. It was stated that word ‘Yanki’ is used for describing Americans and that is a common word. Similarly, the word ‘sizzlers’ is also used for common recipes. Therefore it was submitted that it was not correct to say that mark registered was made of words, but it was a label mark. It was submitted that the Yanki is abbreviated as ‘Yank’ and the word ‘sizzler’ is edible food item, and that both the words as common are used in colloquial dialogues. It was submitted that proprietorship could not be claimed for these words. 3.3.1 It was further contended that upon expiry of the licence period, the plaintiff voluntarily vacated the premises. The plaintiff started in full swing the same business at another premises, it was stated. It was submitted that proprietorship could not be claimed for these words. 3.3.1 It was further contended that upon expiry of the licence period, the plaintiff voluntarily vacated the premises. The plaintiff started in full swing the same business at another premises, it was stated. It was contended that by mentioning about taking of loan, giving of undertaking for new business premises etc. the plaintiff did not come with clean hands. The averments about the defendants using deceptively similar trade dress etc. were denied. Defendants stated that they had been using standard common trade dress, thereby committing no act of passing off the trade dress. 3.4 It may be stated as the disputes arose, the plaintiff filed CMA No.104 of 2020 under Section 9 of the Arbitration and Conciliation Act, 1996 for interim measures in relation to the premises in question which is pending. The plaintiff also instituted Special Civil Suit No.151 of 2020 for infringement of trade mark, the plaint of which was returned on the ground of territorial jurisdiction. Another Special Civil Suit No.882 of 2020 was thereafter filed for same relief against alleged infringement of trade mark wherein the injunction was not granted. Appeal from Order is pending before this court. 3.5 The commercial court below, observed in para 20 of the order impugned that since the plaintiff had been running the business of sizzlers since 2012 at the Thaltej premises, since the premises was owned by defendant Nos.2 and 3 and that defendant Nos.4 and 5 had been handling all the work, that leave and licence was also executed and since the plaintiff was denied the entry in the premises in June, 2020, and looking to the food item prepared thereat, the offering of sizzlers for sale may create confusion in mind of the people. 3.5.1 The court below observed, “Item/commodities prepared by defendant No.1 at same premises through same staff/manager are same/similar with the items/edibles prepared by plaintiff at same premises by/under same staff/managers. No information is pleaded to have been put at the premises that Yanki Sizzlers is shifted to another place, there is possibility of confusion in mind of public at large/customers of plaintiff that defendant No.1 is in any manner associated with plaintiff.” 3.5.2 The final injunction which was granted by the commercial court read thus, “(i) The present interim Injunction application at Exh.5 of the plaintiff is hereby allowed. (ii) The defendants, their agents, servants, dealers, distributors etc. are hereby temporarily restrained from misusing, acquiring, providing and/or offering for sell the products SIZZLERS qua business to others as well as customers by using similar Trade Dress, Data and Trade Secretes i.e. Recipe and advertising, Marketing and/or exposing his business with identical and deceptively similar Trade Dress and Trading Style as of the plaintiff’s Trade Dress as well as Trading Style by misusing Trade Secret i.e. recipe and customer Data and by that way committing the act of ‘Passing Off his goods/products/services as that of the plaintiff. (iii) The present order will remain in operation till the final disposal of the suit.” 4. Learned senior advocate Mr.Dhawal Dave with learned advocate Mr.Udit Vyas for the appellant assailing the impugned order of the commercial court, at the outset submitted that the suit was barred by provisions of Order II Rule 2 of the Code of Civil Procedure, 1908, inasmuch as Trade mark Suit No.882 of 2021 for infringement of the trade mark and for perpetual injunction was already instituted. It was submitted that the said suit was instituted on same facts, therefore, was based on same cause of action. It was submitted that at that time in the very suit, the plaintiff was required to seek all the reliefs arising out of same cause of action. The respondent, it was submitted, omitted to pray for relief in respect of offering to sell sizzlers by using similar trade dress, trade data and trade secret and in respect of passing off. It was submitted that bar of Order II Rule 2 would apply and the plaintiff is not estopped from seeking such injunction in the subsequent suit for passing off action. 4.1 In order to explain principles underlying Order II Rule 2, CPC, learned senior advocate relied on decision of the Supreme Court in State Bank of India Vs. Gracure Pharmaceuticals Limited [(2014) 3 SCC 599], For a similar highlight, another decision in Virgo Industries (Eng.) Pvt. Limited Vs. Venturetech Solutions Private Limited [(2013) 1 SCC 624], was relied on. 4.1.1 It was submitted that though the injunction was prayed for, in respect of offering sizzlers with trade dress and style, the plaintiff did not mentioned any detail as to in what way the appellants used similar recipe, trade dress, trade data etc. for selling food items sizzlers. Venturetech Solutions Private Limited [(2013) 1 SCC 624], was relied on. 4.1.1 It was submitted that though the injunction was prayed for, in respect of offering sizzlers with trade dress and style, the plaintiff did not mentioned any detail as to in what way the appellants used similar recipe, trade dress, trade data etc. for selling food items sizzlers. It was submitted that the plaintiff was unable to show that the product was offered in deceptively similar manner or that any confusion was created. It was submitted that the entire case of the respondent was based on conjectures and surmises; in any case, it was submitted that sizzler was a common name and that there was no act of passing off on part of the defendants. 4.1.2 In order to explain the conceptual meaning and the principles of law in respect of passing off, learned senior advocate pressed into service decision of the Apex Court in Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel, [ (2006) 8 SCC 726 ]. He then relied on decision of the Delhi High Court in Britannia Industries Limited Vs. ITC Limited [(2017) SCC OnLine Delhi 7391]. In that case the injunction on the basis of passing off was claimed for setup and color combination in the packaging. The product was Sunfeast Farm-Lite digestive all good biscuits. It was held that the purpose of injunction, the ITC Limited had to establish that the getup in form of yellow-blue combination employed by it had become so distinctive that whenever any person saw yellow-blue combination on package of digestive biscuits, it would associate with ITC, the court held that it was not established even prima facie and that other distinct and different identifiers existed on packaging with different product names, trade marks and trade names, the ITC Limited was not entitled to interim injunction and that the High Court set aside the injunction order. 4.2 On the other hand, learned senior advocate Mr.Navin Pahwa assisted by learned advocate Mr.F.B.Brahmbhatt, for the original plaintiff submitted that the commercial court rightly allowed the injunction application. He referred to the findings recorded by the court below to submit that there is every possibility of deception and confusion, more particularly when Sazzy Sizzlers served sizzlers from the same place, cooked the sizzlers under the guidance and management of same managers. He referred to the findings recorded by the court below to submit that there is every possibility of deception and confusion, more particularly when Sazzy Sizzlers served sizzlers from the same place, cooked the sizzlers under the guidance and management of same managers. It was submitted that when a person run his business for a specific edible item for long period of time at the same place, the place also become part of the identity of the trade name. It was submitted that defendant Nos.4 and 5 were employees of the plaintiff and had been handling the recipe, restaurant trade dress, prices and had also been maintaining the data of customers. 4.2.1 For contending that the defendant had indulged into act of passing off, learned senior advocate pressed into service the decision of the Supreme Court in Mahendra & Mahendra Paper Mills Limited Vs. Mahindra & Mahindra Limited [ (2002) 2 SCC 147 ]. Two other decisions in Laxmikant B. Patel Vs. Chetanbhai Shah [ (2002) 3 SCC 65 ] and S.Syed Mohideen Vs. P. Sulochana Bai [ (2016) 2 SCC 683 ] were relied on. Decisions in Fairfest Media Limited Vs. ITE Group, [(2015) SCC OnLine Culcutta,23], and in John Richard Brandy Vs. Chemical Process Equipment Private Limited [(1987) SCC OnLine Delhi 236], in respect of granting of injunction, in relation to trade secret, confidential information etc. whereas in Canbank Financial Services Limited Vs. Custodian [ (2004) 8 SCC 355 ] was relied on to highlight about the grant of injunction when fiduciary relationship exists. 5. As explained in Ruston & Hornsby Vs.Zamindara Engineering Company [1969(2)SCC 727], in passing off action, the question would be- Is the defendant selling the goods ‘so-marked’ as to be designed or calculated to lead purchasers to believe that they are the goods of plaintiff ? And in infringement action, the issue would be- whether the defendant is using the mark which is the same as or which is a colourable imitation of plaintiff’s registered trademark. The element to be established by the plaintiff in an passing off action is misrepresentation by the defendant to the public. And in infringement action, the issue would be- whether the defendant is using the mark which is the same as or which is a colourable imitation of plaintiff’s registered trademark. The element to be established by the plaintiff in an passing off action is misrepresentation by the defendant to the public. What has to be shown is the likelihood of confusion in the minds of public- the word ‘public’ is to be understood to mean actual or potential customers or users – that the goods or services offered by the defendant are the goods or services of the plaintiff. The class of persons who would opt such goods and services assumes significance in assessing likelihood of creation of confusion. 5.1 In Satyam Infoway Ltd. Vs. Siffynet Solutions (P) Ltd. [ (2004) 6 SCC 145 ], the Supreme Court explained the action of passing off thus, “An action for passing off as the phrase "passing off itself suggests, is to restrain the defendant from passing off its goods or services to the public as that of the plaintiff's. It is an action not only to preserve the reputation of the plaintiff but also to safeguard the public. The defendant must have sold its goods or offered its service in a manner which has deceived or would be likely to deceive the public into thinking that the defendant's goods or services are the plaintiff's. The action is normally available to the owner of a distinctive trademark and the person who, if the word or name is an invented one. invents and uses it. If two trade rivals claim to have individually invented the same mark, then the trader who is able to establish prior user will succeed.” (para 13) 5.2 Before proceeding further in respect of the merits of the issues involved, the submission that previous institution of the trade mark Suit No.882 of 2021 would attract bar of Order II Rule 2 CPC, to the present suit, may be dealt with. The provision of Order II Rule 2, CPC is mandatory in nature, the requirement thereunder is that the plaintiff is duty-bound to claim the entire relief at a time when cause of action is same. As observed in Sandeep Polymers (P.) Ltd. Vs. The provision of Order II Rule 2, CPC is mandatory in nature, the requirement thereunder is that the plaintiff is duty-bound to claim the entire relief at a time when cause of action is same. As observed in Sandeep Polymers (P.) Ltd. Vs. Bajaj Auto Limited [ (2007) 7 SCC 148 ], ‘Rule 2 further enjoins the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards. 5.2.1 In State Bank of India (supra), the principle was reiterated thus, “The above-mentioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2, CPC is based on the cardinal principle that defendant should not be vexed twice for the same cause. ” (para 11) 5.2.2 It was highlighted that the provision requires unity of all claims where cause of action is one. “Order 2 Rule 2, CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the above- mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case. ” (para 12) 5.2.3 The object of the provision and the situations in which it would operate came to be explained thus, “The object behind the enactment of the provisions of Order II Rule 2 of the CPC as already discussed by us, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations.” (para 17) 5.2.4 In Carlsberg Breweries A/S. Vs. Som Distilleries Breweries Ltd. [AIR 2019 Delhi], Full Bench of Delhi High Court observed that in such cases, composite suit would have been filed for infringement and passing off on the count that the goods of the defendant were imitation that is identical or deceptively similar, to the goods of the plaintiff. 5.2.5 Following was stated by the Delhi High Court in para 64A. “On account of existence of common questions of law and fact between the two causes of action of infringement of a registered design and passing off, therefore to a considerable extent, the evidence of the two causes of action will be common. In such a situation to avoid multiplicity of proceedings there should take place joinder of the two causes of action of infringement of a registered design and passing off against the same defendant in one suit, otherwise multiplicity of proceedings will result in waste of time, money and energy of the parties and also of the courts.” 5.3 Though conceptually infringement and passing off are in a way different, in ultimate analysis both presupposes an inquiry whether the trade mark attached to the product or service is likely to deceive or cause confusion. The action for infringement of trade mark as well as the passing off action would be based on similar set of facts. The cause of action is bundle of facts. Therefore, where the facts are same to constitute the cause of action, it would remain the same. The test of deceptive similarity have to be applied with set of same facts. In other words, it could be said that on the same bundle of facts, the infringement of action as well as passing off action would lie. Therefore, where the facts are same to constitute the cause of action, it would remain the same. The test of deceptive similarity have to be applied with set of same facts. In other words, it could be said that on the same bundle of facts, the infringement of action as well as passing off action would lie. 5.4 In Ramdev Food Products (P.) Limited (supra), the Supreme Court observed that the test for determination of dispute could be same where a cause of action for passing off arises, the deceptively similar test would be applicable. The Supreme Court then explained, “PASSING OFF - INFRINGEMENT Although, the defendant may not be using the actual trade mark of the plaintiff, the get up of the defendant's goods may be so much like the plaintiff's that a clear case of passing off could be proved. It is also possible that the defendant may be using the plaintiff's mark, the get up of the defendant's goods may be so different from the get up of the plaintiff's goods and the prices also may be so different that there would be no probability of deception of the public. However, in an infringement action, an injunction would be issued if it is proved that the defendant is improperly using the plaintiff's mark. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. The test, therefore, is as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions.” (para 91) (emphasis supplied) 5.4.1 The test of similarity and therefore cause of action comprised of bundle of facts would be the same, reiterated the Supreme Court in Ruston Hornsby Limited (supra) to observe, ‘the test of likelihood of confusion or deception arising from similarity of marks is the same, both in infringement and passing off actions.’ In Kaviraj Pandit Durga Dutt Sharma Vs. Navratna Pharmaceuticals Laboratories [ AIR 1965 SC 980 ], the Supreme Court explained that the same cause of action arises as the attendant facts would be the same in both, “These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy for the event of the use by another of that mark or a colourable imitation thereof. While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods" (Vide Section 21 of the Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark”. (para 95) (emphasis supplied) 5.4.2 In Bombay High Court in Hindustan Unilever Limited Vs. An Opposing Party being Interim Application No.3766 of 2021 in Commercial Suit No.3761 of 2021, it was observed that setting out two separate prayers, one for infringement and one for passing off is a singularly unwise practice. 5.5 The expression cause of action means a situation or state of facts which entitles a party to maintain an action in court. The cause of action is not evidence. It is not a principle to be applied even to in the process of adjudication. Cause of action is simply assembling of facts. It is group of operative facts. 5.5 The expression cause of action means a situation or state of facts which entitles a party to maintain an action in court. The cause of action is not evidence. It is not a principle to be applied even to in the process of adjudication. Cause of action is simply assembling of facts. It is group of operative facts. Such group of facts may be good and valid for claiming more than one relief. Such would be the case when one sues for infringement of trademark or institutes a passing off action. 5.6 It has to be held in the facts of the present case that respondent plaintiff had instituted the Trade Mark Suit No.882 of 2021 for infringement, in which though the set of facts constituting cause of action were same. The plaintiff did not seek relief on the ground of passing off, in the previous suit. The contention that the subsequent suit for passing off action is barred by Order II Rule 2, CPC, could not be brushed aside lightly. 6. Now, irrespective of above, adverting to the merits of the case and that of the impugned order, the reasoning of the court below could be said to be flawed on several counts. Firstly, that the prior user of the premises and running of restaurant business for serving sizzlers, could be traced in favor of the appellants. There is no gainsaying that while the plaintiff started business in the year 2012, well before that, since 2009 the defendants were serving the sizzlers in the restaurant though run with different name- Kitchen Kraft. The business premises was known and identifiable for the edible item sizzlers. Appellant Nos.2 and 3 were the lawful owners of the premises and respondent was only licencee. In S.S.Syed Mohideen (supra), the Supreme Court recognized the prior user to be a superior right. 6.1 For the injunction of the kind granted, there is total dearth of prima facie case. The respondent has not pleaded with clarity and with requisite details that deceptively similar trade dress or trade style were used, except giving vague reference to the design of menu card and table carpet. It was the case of the defendant that there was no iota of similarity in them. The respondent has not pleaded with clarity and with requisite details that deceptively similar trade dress or trade style were used, except giving vague reference to the design of menu card and table carpet. It was the case of the defendant that there was no iota of similarity in them. Though it was the specific case of the plaintiff respondents that the appellants used similar trade dress, trade data, recipes and trade secrets of Yanki Sizzlers, the court below has not recorded such finding even prima facie. In such circumstances, in absence of proper pleadings, and factual details the court committed error in granting injunction. For exercising powers under Order XXXIX Rule 1, 2, CPC, specially for grant of injunction in trade mark suits, the case must be supported by adequate and cogent material to establish infringement or passing off, as the case may be. 6.2 Furthermore, when the nature of injunction granted by the court below is considered, it is incapable of being implemented inasmuch as the court has not restrained the appellants from selling the sizzlers. The restraint order is in respect of using similar trade dress, trade data and trade secret. Such unworkable injunction could not have been granted in law. The appellants claim to be using their own different recipe. These aspects to be established on evidence. Without sufficient material establishing prima facie case in that regard, the injunction was not liable to be granted. 6.3 The weighty aspect ignored by the commercial court below in granting the injunction is that the word ‘sizzlers’ represent an edible item. It is common name of food item. When one says ‘sizzler’, one does not indicate to any distinct food product. ‘Sizzler’ is generic word representing a common food. The injunction is granted in respect of selling of sizzlers together based on trade style and trade dress for which no material was available on record. Even if the combination of words ‘Yanki’ and ‘Sizzler’ are taken together, the ‘Yanki Sizzler’ and ‘Sazzy Sizzler’ do not have phonetic similarity. The class of consumers eater who would be fond of sizzlers would easily recognize the difference between Yanki and Sazzy as per their choice. There is no scope of confusion or deceptive similarity in sizzlers- a common food item- offered by the parties. The class of consumers eater who would be fond of sizzlers would easily recognize the difference between Yanki and Sazzy as per their choice. There is no scope of confusion or deceptive similarity in sizzlers- a common food item- offered by the parties. 6.4 The competing label words in the present case ‘Yanki Sizzlers’ and ‘Sazzy Sizzlers’, as already noticed ‘sizzler’ is common food name which cannot be subject matter of distinct trademark. It is universally identified food stuff in similar way. The distinguishing mark are ‘Yanki’ and ‘Sazzy’. In addition that both do not have phonetic similarity and both would leave distinct impression in the minds of sizzler likers who would exercise their preference by remembering such distinct name, the words ‘Yanki’ and ‘Sazzy’ could be viewed as a domain name. The sale of sizzlers by both the parties could be distinguished by this domain name. In the modern commercial world, such domain name operated to differentiate the goods or services which are otherwise similar but associated with different service providers or sellers. 6.5 In Satyam Infoway Ltd. (supra), the concept of domain name was highlighted, the Supreme Court stated, “The original role of a domain name was no doubt to provide an address for computers on the internet. But the internet has development from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a domain name is also used as business identifier. Therefore, the domain name not only serves as an address for internet communication but also identifies the specific internet site. In the commercial field, each domain name owner provides information/services which are associated with such domain name. Thus domain name may pertain to provision of services within the meaning of Section 2(z). A domain name is easy to remember and use, and is chosen as an instrument of commercial enterprise not only because it facilitates the ability of consumers to navigate the Internet to find websites they are looking for, but also at the same time, services to identify and distinguish the business itself, or its goods or services, and to specify its corresponding online internet location. Consequently a domain name as an address must, of necessary, be peculiar and unique and where a domain name is used in connection with a business, the value of maintaining an exclusive identity becomes critical.” (para 12) 6.6 It was further observed by quoting Information Technology Law Diane Rowland & Elizabeth Macdonald [2nd Edition Pg.521], “As more and more commercial enterprises trade or advertise their presence on the web, domain names have become more and more valuable and the potential for dispute is high. Whereas large number of trademarks containing the same name can comfortably coexist because they are associated with different products, belong to business in different jurisdictions etc., the distinctive nature of the domain name providing global exclusivity is much sought after. The fact that many consumers searching of a particular site are likely, in the first place, to try and guess its domain name has further enhanced this value.” 6.7 When the Yanki Sizzler and Sazzy Sizzler co-exists to offer and sell generic food item called sizzler, they could be said to be standing distinguished by their domain name Yanki and Sazzy. These two domain named phonetically and visually dissimilar rule out the possibility of deception and confusion among the class of customers of sizzlers. The specific class of consumers has always special choice for the food they like and they always remember the distinction. 7. For all the forgoing reasons and discussion, order dated 27.1.2022 passed by learned Special Judge, Commercial Court - 8th Additional District Judge, Ahmedabad (Rural) at Mirzapur, below Exh.5 in Trade Mark Suit No.8 of 2021 is hereby set aside. The Appeal from Order stands allowed. In view of disposal of the Appeal from Order, the Civil Application will not survive. Accordingly, it is disposed of.