This appeal is filed against the order of the District Court, Mavelikara, in I.A.No.685 of 2003 in O.S.No.1 of 2003. The appellant filed the suit for injunction restraining the defendant from passing off services in the name deceptively similar to that of the plaintiff’s name. The appellant also filed an application for interim injunction which was dismissed by the trial court and which order is under challenge in this appeal.

2. The plaintiff’s case is that the plaintiff-company incorporated in the year 1990 is doing business in the nature of medical diagnosis and scanning in the trade name ‘Medivision’ from 1993 onwards. The plaintiff-company has earned good will and reputation in the field of medical diagnosis and scanning and the public has acquainted with the name ‘MEDIVISION’ with that of the plaintiff. The plaintiff has its head office at Kochi and has got a branch at Mavelikara. The defendants with a mala fide intention started an institution at Mavelikara in the name ‘MEDIVISION IND’ with the sole intention to tarnish the reputation of the plaintiff-company. Second defendant was an employee of the plaintiff and he left the establishment in October, 2003 and according to the plaintiffs, 2nd defendant is the person behind the 1st defendant in establishing ‘MEDIVISION IND’ at Mavelikara in 2003. The plaintiff’s application for registration of the trade name is pending before the Registrar of Trade Marks, Chennai. The plaintiff has invested large amounts for advertisement of the name ‘MEDIVISION’. The use of ‘MEDIVISION IND’ by the defendant which is deceptively similar to the plaintiff-company’s name clearly shows the mala fide intention in passing off the plaintiff’s service as that of the defendant. On the above allegations, the appellant prayed for an interim injunction restraining the defendant from passing of services in the name deceptively similar to that of the plaintiff’s name.

3. In the counter-affidavit filed by the third defendant, it is contended that the petitioner has no exclusive right over the word ‘MEDIVISION’. It is used by thousands of companies all over the world to denote goods and services relating to scanning and endoscopy. It can be seen from a search in the internet like YAHOO and GOOGLE. The search in GOOGLE shows 3910 such sites and YAHOO shows 2650 sites. The petitioner also used a Head and Comb device as its logo. The petitioner did not obtain any reputation which has together symbolized in the trademark on which the petitioner claims right. The respondent has also applied for trademark registration for ‘MEDIVISION’ symbolized with a distinctive logo which is different from that of the petitioner. The respondents were using the name ‘MEDIVISION’ since 1998. One of the partners of the firm Lekshmi owned a business of clinical laboratory and scanning under the trade name MEDIVISION DIAGNOSTIC RESEARCH CENTRE at Karunagappally. Thereafter, the 3rd defendant, Lekshmi and a few others formed the present partnership and got it registered under the Partnership Act. The name ‘MEDIVISION’ was given to the Research Centre at Karunagappally by the Directors of the Company. It is only when the respondent decided to expand the business by using the name MEDIVISION that the plaintiff thought of filing the suit. The petitioner-company has acquiesced in the use of the word MEDIVISION by the respondents. The respondents also contended that the suit is not maintainable. The petitioner has not made out a prima facie case of exclusive use of the word MEDIVISION. The 3rd respondent also contended that the suit is bad for misjoinder of parties and non-joinder of parties. It is also contended that if more than one entity can use the trademark for a considerable time, law recognizes the use of both the parties or all the parties on the basis of honest concurrent user as stated in S.12 of The Trade Mark Act. It is seen that the petitioner had earlier applied for registration of the trade mark which must ha