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37. In view of the nature of disputes and pleadings of the parties the only question to be decided prima facie at this stage is whether the trade marks of the defendant i.e. 'Dura Roof' and 'Dura Lume' are deceptively similar to the trade mark of the plaintiff i.e. 'Dyna Roof' and 'Dyna Lume' and are likely to cause confusion.

38. Learned counsel for the appellant referring to existence of about 41 trademarks having common suffix 'Roof' and 11 trademarks with common suffix 'Lume', on the register, contended that 'Roof' and 'Lume' being non- distinctive and generic terms common to the trade, no one can claim exclusive right over such generic term. Countering the above submission, Learned Sr. Counsel, Mr. M.K. Choudhury, submitted that no evidence has been adduced to show that all those trademarks with suffix 'Roof' or 'Lume' are present in the market, and that only because some other proprietors are using the common suffix or prefix to their trade mark, would not affect the right of the plaintiff to bring action against the defendant. Apparently, defendant has produced some documents showing the existence of about 41 marks with suffix 'Roof' and about 11 trademarks with suffix 'Lume' on the register. For the purpose of temporary injunction, in my view, prima facie, it has to be presumed that there are such marks being used. Whether, those trademarks are present in the market or not is matter of evidence and that will come only at the time of final decision of the suit, when parties will adduce evidence. The documents, produced by the defendant, in my view, are sufficient for holding prima facie, that the marks 'Roof' and 'Lume' are common and non-distinctive. Since many other proprietors are dealing with identical goods being roofing sheets, with the trademark having suffix 'Roof', the term 'Roof' appears to be common to the trade relating to the goods dealt by the parties and therefore the word 'Roof' is apparently a non- distinctive term and one cannot claim exclusive right over such term 'Roof'. Similarly, from the documents produced by the defendant, showing the existence of about 11 trademarks with the common word 'lume' on the register, the word 'Lume' also prima facie appears to be commonly used for the product i.e., the roofing sheet, which has reference to the materials, i.e aluminium, used for the product. The defendant contended in the pleading that word 'Lume' is used by various roofing companies to show, that their roofs is made out of Alloy of Zinc and aluminium, to reflect heat and sunlight. Therefore, the word 'Lume,' used as suffix by both the parties indicating the materials of which the product is made of, and existence of multiple trade mark with suffix 'Lume' on the register, indicating that many of the proprietors are using such word 'Lume' as suffix for identical goods, the term 'Lume' also in my view, is a non-distinctive word for which no one can claim exclusive right.