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The Division Bench of IP Mukherji and Md. Nizamuddin, JJ. allowed an appeal that challenged the order of the Single Judge. In the questioned order, the Single Judge denied the plaintiff’s application for interim injunction that restrained the respondent from the usage of a trademark.
In the present case, the appellant and respondent both manufacture TMT bars used in constructions. The plaintiff –appellant is the registered proprietor of the name “Shyam”. The appellant claimed that the respondent had infringed the trademark. The interlocutory application filed by the appellant to grant interim injunction till the finishing of the suit was denied by Single Judge. Aggrieved thereby, the appellant moved the HC.
The respondent submitted that firstly the name “Shyam” was the name of a God. Hence that itself rendered the registration invalid. Also, the suit filed by the appellant was after a considerable delay which made a defence of acquiescence available to the respondent.
The first contention was readily quashsed for the time being by the HC. Relying on Lal Babu Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795, the HC said that the registration could not be cancelled before the respondent had submitted sufficient proof by means of cogent evidence that “Shyam” indeed was the name of a God and was not distinctive of the appellant. Since at this stage of the matter, the respondent failed to prove this even prima facie, the HC would reject the first contention.
Regarding the second contention, the Court cited the case of Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448 where the SC had said that mere silence or inaction could not give rise to a claim of acquiescence. Acquiescence could only arise from positive acts.
The HC after hearing decided that interim injunction would be applied and the respondent would be restricted from using the registered trademark in question. The injunction would come to effect from 1/5/2020. During this window, the HC gave permission to the respondent to clear their existing stocks.
Shyam Steel Industries Ltd., v. Shyam Sel & Power Ltd., APO No. 91 of 2019.
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