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2017 Supreme(Gau) 932
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MIR ALFAZ ALI, J.
DURA ROOF PRIVATE LIMITED A CO. REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE - Appellant
Versus
DYNA ROOF PRIVATE LIMITED A CO. INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 AND HAVING ITS REGISTERED OFFICE - Respondent
FAO 47, 50 OF 2017
Decided On : 28-08-2017
For the Appellant :Mr. K.N. Choudhury, Sr. Advocate Mr. D. Barua, Advocate.
For the Respondent:Mr. M.K. Choudhury, Sr. Advocate.
Headnote:
Trademark Act – Section 34 – Trade Marks Act – Companies Act – Section 29 – Suit – Temporary Injunction – Declaration and permanent injunction restraining from using mark Dura Lume or any other mark identical or similar to plaintiff’s mark Dyna Lume,in relation to quoted sheets – Case of plaintiff is that defendant infringed well known trade mark of plaintiff ‘Dyna Lume’ and Dyna Lume the 3 G Roofing Sheets – Plaintiff has been engaged in manufacturing and marketing of galzvalume zincalume sheet and other accessories trade mark plaintiff has been leading business house in North Eastern India in manufacturing and marketing roofing sheets and its accessories and trade mark ‘Dyna Lume’ was registered – Held, Position temporary injunction is refused, and ultimately plaintiff succeeds in suit loss, plaintiff is likely to suffer, basically being financial one, for which damage is already claimed in suit, there will be no difficulty in compensating the plaintiff – Balance of convenience and irreparable loss also does not appear to be in favour of the plaintiff – No doubt, in an appeal against a discretionary order – Appellate court is not supposed to substitute its own unless discretionary order is found to be whimsical, capricious or arbitrary already pointed out hereinbefore – Learned Trial Court while exercising jurisdiction in instant case failed to exercise its discretion in a judicious and proper manner and therefore, in the facts and circumstances there is no option left for this Court but to set aside impugned orders of temporary injunction – Appeals are allowed.
1. In both the appeals, i.e. FAO No. 50/2017 and FAO No. 47/2017, Dura Roof Private Limited, a company registered under the Companies Act is the appellant and Dyna Roof Private Limited, a company, registered under the Companies Act is the respondent.
2. In FAO 50/2017, the order dated 02.08.2017 passed by the learned Additional District Judge, Kamrup in Misc. (J) Case No. 59/2017 arising out of TS 3/2017, granting temporary injunction, restraining the appellant from using the trade mark ‘Dura Roof’ or any other mark identical or similar to the plaintiff’s trademark ‘Dyna Roof’ either as a trade mark or trade name and in FAO 47/2017, the order dated 09.06.2017 passed by the learned Addl. District Judge, Kamrup in Misc. (J) Case No. 15/2017, arising out of TS 2/2017, granting temporary injunction, restraining the appellant from using the trade mark ‘Dura Lume’ or any other mark identical or similar with the plaintiff’s trade mark ‘Dyna Lume’ and ‘Dyna Lume 3 G Roofing Sheets’ are under challenge.
3. On consent of both the parties, both the appeals are taken for disposal at the stage of admission.
4. The respondent Dyna Roof Pvt. Ltd. (hereinafter referred to as the plaintiff) instituted TS 2/2017 for damages, declaration and permanent injunction restraining the DURA ROOF PVT. LTD (hereinafter referred to as defendant) from using the mark Dura Lume or any other mark identical or similar to the plaintiff’s mark Dyna Lume,in relation to colour quoted galzvalume/zincalume sheets. The case of the plaintiff is that the defendant infringed the well known trade mark of the plaintiff ‘Dyna Lume’ and Dyna Lume the 3 G Roofing Sheets’. The plaintiff has been engaged in manufacturing and marketing of galzvalume/zincalume sheet and other accessories under the trade mark ‘Dyna Lume’. The plaintiff has been the leading business house in North Eastern India in manufacturing and marketing the roofing sheets and its accessories since 2004 and trade mark ‘Dyna Lume’ was registered on 24th September, 2007. In or around the month of September, 2016, the plaintiff through its marketing and sales team came to know that the defendant was carrying on business activities similar to that of the plaintiff and was selling its variety of roofing sheets under the mark ‘Dura Lume’, which is deceptively similar to the trade mark ‘Dyna Lume’ of the plaintiff. The plaintiff also came to know that the defendant has applied for registration of the said infringed mark ‘Dura Lume’, which has been objected by controller of patents, design of trade mark. By adopting the mark ‘Dura Lume’, which is deceptively similar to that of the plaintiff’s registered trade mark ‘Dyna Lume’ and ‘Dyna Lume the 3 G Roofing Sheets, defendant clearly infringed the plaintiff’s trademark. The plaintiff further stated that its popular and well known trademark ‘Dyna Lume’ has earned huge reputation in the market. Defendant’s trademark ‘Dura Lume’ is deceptively similar to plaintiff’s trademark both visually and phonetically and defendant is manufacturing and marketing identical goods under the said infringing mark. Adoption of the infringing mark by the defendant is likely to cause confusion on the part of the public, which would cause irreparable loss and injury to the plaintiff. Along with the suit, the plaintiff has also filed a petition for temporary injunction restraining the defendant from using the alleged infringed mark ‘Dura Lume’ or any other mark, label etc., which is identical or similar to the plaintiff’s trade mark ‘Dyna Lume’ and ‘Dyna Lume the 3 G Roofing Sheets’ either as trade mark or trade name, style, domain name and corporate name etc.
5. The plaintiff also instituted T.S. 3/2017 against the defendant for trademark infringement, passing off etc. The case of the plaintiff in TS 3/2017 was that in or around in the month of September, 2016, the defendant started carrying on business activities similar to that of plaintiff under the trade mark ‘Dura Roof’, wh
