A plaintiff seeking a temporary injunction on the ground of infringement or passing off must establish a prima facie case, demonstrate a balance of convenience in its favor, and show evidence of irreperable injury or loss if the injunction is not granted.

JUDGMENT :

SUDESH BANSAL, J.

1. By way of instant Civil Miscellaneous Appeal, appellant-plaintiff (hereinafter referred to “the plaintiff”) is praying for grant of temporary injunction against the respondent-defendant (hereinafter referred to “the defendant”) for not using the trade name ‘POLYGON’ for manufacturing and sale of water tank and PVC pipes, container water storage, hose pipes, DHPE pipes, flexible pipes and conduit pipes, rigid PVC etc. because this trade name is deceptively and phonetically similar to its registered trade name of ‘POLYCON’ and has prayed to set aside the impugned order dated 12.10.2015 whereby and whereunder plaintiff’s application for temporary injunction was dismissed by the Trial Court.

2. Heard learned counsel for both parties, perused the impugned order and record placed before this Court.

3. It appears from the record that the plaintiff instituted civil suit for permanent injunction alongwith an application for temporary injunction on 13.02.2015 on the ground of infringement/passing off his registered trademark ‘POLYCON’ against the defendant alleging inter-alia that on 10.12.2014, it came to knowledge of plaintiff-company that defendant-company has started manufacturing and selling products of PVC pipes, hose pipes, DHPE pipes, flexible pipes and conduit pipes etc. by using the trademark ‘POLYGON’ after copying the trademark of plaintiff ‘POLYCON’ and since the trademark of plaintiff is registered; both trademark are deceptively and phonetically similar, the use of such trademark by respondent is illegal. Plaintiff alleged that the defendant has started to use the trademark ‘POLYGON’, dishonestly in order to gain the benefit of the goodwill of the registered trademark of plaintiff and thereby the defendant is misleading customers, traders and public. Plaintiff alleged that such action of defendant is infringement of registered trademark of plaintiff and since plaintiff is prior user of his trademark, ‘POLYCON’ therefore starting the business by the defendant in the trademark of ‘POLYGON’ is illegal and against provisions of Trademarks Act, 1999, accordingly, the plaintiff prayed for to restrain the defendant by way of permanent injunction and until decision of suit, by way of temporary injunction not to use trademark of Polygon for his business activities.

4. In counter, defendant filed reply to the application for temporary injunction contending that the defendant had already applied for registration of trademark ‘POLYGON’ Class 17 and he is indulged and carrying out business using the trade name ‘POLYGON’ since years to sell Oil Seals, Gaskets, Ruber Parts, Gutta, Percha, Gum, Asbestos, PVC Pipes, Hose Pipes, HDPC Pipes, Flexible Pipes, Conduit Pipes, Rigid PVC Pipes, PVC Sleevings, Laminated Sheets, Packaging, Stopping & Insulated Material PVC Casing and Caping, Mudguard, Visor, Side Panel, Side Box for wheeler, Seat Cover & Plastics Parts, Mica and goods made from these materials etc. Defendants also stated that its sister concern firm through owner Manoj Agarwal has already got registration of the trademark ‘POLYGON’ Class-9.

Counsel for defendant pointed out that the plaintiff has no registration in the trademark in the name of ‘POLYCON’ Class-17 and its application No. 2198072 dated 15.09.2014 for registration is yet pending before the Registrar of Trademarks, wherein the defendant has submitted an objection/opposition. It was pointed out that the plaintiff has misleaded the Court as Trademark ‘POLYCON’ No. 2198072 in Class-17 of plaintiff is still unregistered, therefore, claiming injunction on the ground of infringement of registered trademark, is against provisions of Section 27 (1) of the Trademarks Act, 1999. As far as registration of Trademark ‘POLYCON’ of plaintiff as indicated in para 6 of the application, the trademark ‘POLYCON’ No. 489207 and ‘POLYCONGOLD’ No. 808778 are device mark in Class 11 for molded water storage tanks and ‘POLYCON’ registration No. 2198070 is restricted by