JUDGMENT :

M.D. Shah, J.

Although this Appeal From Order is listed on the board for admission, with the consent of the learned counsel appearing for both the parties, it has been taken up for final hearing today.

2. This Appeal From Order under Order 43 Rule 1(r) of Code of Civil Procedure has been filed by the appellants-original defendant Nos.1 and 2 challenging the order dated 26-6-2012 passed below applications Exs.6 and 7 in Regular Civil Suit No.266 of 2012 by the learned Judge, City Civil Court No.15, Ahmedabad, whereby Notice of Motion was allowed and appellants were restrained from using the word "Medicure" in the trade mark and the words "Surgical Dressing" in internet domain till the final disposal of the suit.

3. The short facts are that a suit being Regular Civil Suit No.266 of 2012 was filed by the present respondent No.1-original plaintiff seeking perpetual injunction restraining infringement of copyright and passing off as also for rendition of accounts/damages together with Notice of Motion Ex.6 and application for temporary injunction Ex.7.

4. During the pendency of the aforesaid suit, a purshis at Ex.45 was filed by the plaintiff abandoning the relief of infringement of copy right from the plaint as well as from Notice of Motion and prayer of the suit was limited to the relief of passing off and rendition of accounts/damages. The trial court vide order dated 27-3-2012 passed below Ex.1 permitted the plaintiff to abandon the relief of infringement and continue the suit with relief of passing off and for rendition of accounts together with the interim relief of passing off.

5. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, the learned Judge, City Civil Court No.15, Ahmedabad, vide the order dated 26-6-2012 allowed the Notice of Motion and restrained the original defendants from using the words "Medicure" and "Surgical dressing" in the trademark and in internet domain till final disposal of the suit. Hence, the present Appeal From Order along with Civil Application for stay has been filed by the present appellants.

6. Heard learned advocate, Mr.Premal R.Joshi with learned advocate, Mr.Kabil K Acharya for the appellants and learned Senior Advocate, Mr.S.N.Soparkar with learned advocate, Mr.Y.J.Jasani for learned advocate, Mr.Pratik Y.Jasani for the respondents.

7. Learned advocate, Mr.Premal Joshi, submitted that composite suit for infringement of copyright and passing off as also for rendition of accounts/damages is not tenable and, therefore, trial court has committed an error in granting injunction against the defendants. He further submitted that although word 'Medicure' is not trade mark but house mark, trial court considered it to be trade mark. There is difference between trade mark and house mark as per the provisions of Trade Mark Passing Of. According to him, the word 'Medicure' is a house mark which is also known as emblem of the manufacturer and it is the house mark of the appellants while that of the respondent No.1 is 'Medicare" and hence, trial court ought not have restrained the appellants from using the said word.

8. He further submitted that the word 'Medi' in the words 'Medicare' and 'Medicure' is derived from the word 'Medical' and the words 'Care' and 'Cure' are generic words having different dictionary meanings. Since the word 'Medi' is prefixed by many companies in their medicinal products and also since the word 'Medicare' can be treated as house mark, present respondent No.1-original plaintiff cannot have exclusive right over the words 'Medi' and 'Medicare'. According to him, there is no question of misleading the customers by using the house mark 'Medicure' as the products will be sold by product name and not by house mark. Apart from that, the consumers for the surgical dressing products are highly qualified as they are always prescribed by doctors and hence, there is no question of misleading. He also submitted that trial court has erred in