[2023/RJJP/003212]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 963/2016

M/s Baid Rotomoulders Pvt Ltd. 140 (2) Industrial Area,

Jhotwara, Jaipur (Raj.) through Director K.K. Baid

----Appellant-Plaintiff

Versus

M/s S. M. Industries, 340/23, Ground Floor, Street No.-1, Friends

Colony, Industrial Area, G.T. Road, Shadra, Delhi-110032

through Authorized Signatory/Director/Manager

----Respondent-Defendant

For Appellant(s)

:

Mr. G. D. Bansal with

Mr. Dharmendra Gupta

For Respondent(s)

:

Mr. Amit Chhangani

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

13/02/2023

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.

[2023/RJJP/003212]

(2 of 7)

[CMA-963/2016]

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

[2023/RJJP/003212]

(3 of 7)

[CMA-963/2016]

‘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.

Counse