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TMI Blog2010 (1) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... d Single Judge directed them not to start any new course similar to the course run by the appellant, namely, graduate and post-graduate courses in Management, Travel and Tourism and further directed them to insert a note in the advertisement etc. that their institute is in no way related to the appellant. 2. The appellant is incorporated under the Companies Act. Although, the appellant's main objects, as specified in para `A' of the Memorandum of Association, are to impart and train in all areas, subjects, fields and disciplines of education, including hospitality, tourism and business management; to act as representative of various foreign educational institutions, universities, organizations, bodies or any other type of institutions for recruiting students and rendering other related services; to establish and run in any part of India, colleges or schools to impart education on such terms and conditions as may be laid down by the Company from time to time but a closer look at the incidental or ancillary objects enumerated in para `B' and other objects enumerated in para `C' of the Memorandum of Association shows that the appellant can engage itself in all types o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profits earned by them by the alleged wrongful use of the name `Skyline' and deliver all printed material including syllabi, course materials, stationery, blocks, dies, etc. bearing the name `Skyline'. 6. In the plaint, the appellant averred that it was established in 1996 on the lines of the previously existing and highly successful Skyline College, Sharjaha, which was brain child of Mr. Kamal Puri, an eminent educationist, who set up first Skyline Institute in 1990 with the object of providing high quality graduate and post-graduate level professional education and training to the students. The appellant further averred that Skyline Business School was established in 1997 as its division with the object of imparting high quality education in the field of management at under-graduate and post-graduate levels and in a period of one decade it has acquired a substantial reputation and good will on account of highly qualified and dedicated faculty, the internationally competitive courses and scientific methodology of imparting education. The appellant claimed that it has affiliation with the University of Oxford, University of Lincolnshire and Humberside, U.K., National Ameri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the country and worldwide there are thousands of institutes/institutions, companies, firms, etc. which are using that word as part of their name. The respondents further pleaded that they were already running several companies/firms with the name Skyline and there is no possibility of deception and confusion among the students due to establishment of Skyline Institute of Engineering and Technology. Another plea taken by the respondents is that as per existing law no trademark can be granted in respect of educational services and, as such, the appellant does not have the locus standi to seek an order of injunction against them more so because Skyline Institute of Engineering and Technology was established in 2002 by spending more than ₹ 20 crores and the students have already taken admission against 240 seats sanctioned by AICTE. The respondents also alleged that the appellant was operating from the premises of Laxman Public School, Hauz Khas pursuant to an agreement entered into by Shri Kamal Puri in the name of Skyline Express. The respondents also filed reply on similar lines to the application for temporary injunction. Findings of the Learned Single Judge 8. After consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y allowed and till the disposal of the suit, the defendants are hereby restrained from starting any new courses similar to the courses run by the Plaintiff viz. graduate and post- graduate education in management, travel and tourism. The ex-parte ad-interim order dated 01.10.2002 is modified to the extent that the defendants will be free to make publicity/issue advertisements etc. in their existing name for any courses in technical/Engineering education provided the said advertisements contain a note to the effect that the institute of the defendants is not related to the Plaintiff's institute being run under the name of "Skyline Educational Institute (India) Pvt. Ltd.", in any way." 10. The appellant and respondents challenged the order of the learned Single Judge by filing separate appeals. The Division Bench expressed its agreement with the learned Single Judge that the word `Skyline' is not a generic word but was an adoptive word and observed: "We also find no force in the argument of the counsel for the respondent that the word `skyline' was not a generic word and was an adoptive word as far as education is concerned. A student who would like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this country. All this exercise is not in realm of imparting education but knowing fully well that in India the name of a foreign university is lucrative enough to get larger chunk of money from the pockets of the parents. What is the value of these degrees, whether they are permitted to do so or not, we will advert later. Here is a classic case of the respondent who got letters from the University of Lincolnshire and Humberside, UK both dated 17th October, 1996 which too was for a period of five years only with effect from 1st May, 1997. It as a certificate which the respondent was to given in travel and tourism. However, respondent started giving advertisements for education in BBA (Hons.) with specialization in marketing or tourism. One such advertisement is at page 516 of the paper book. It was contended before us by Mr. Singh that on 11 th March, 1998 they had also an arrangement of BBA Marketing programme from the said university. At this stage, we would not like to go to the question whether the respondent could have represented that they could offer courses in BBA Marketing or not, what is of relevant is even if we accept the argument of learned counsel for the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixing the word `Skyline' with the sole object of encashing the goodwill generated by the appellant and its sister concern which is operating in UAE. In support of his arguments, the learned senior counsel relied upon the judgments of this Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories 1965 (1) SCR 737, Ruston & Hornsby Ltd. v. The Zaminidara Engineering Co. 1969 (2) SCC 727, N.R. Dongre and others v. Whirlpool Corporation and another 1996 (5) SCC 714 and Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. 2004 (6) SCC 145. 12. Shri L.N. Rao, learned senior counsel for the respondents supported the impugned order to the extent the Division Bench rejected the appellant's prayer for restraining the respondents from prefixing the word `Skyline' with the Institute of Engineering and Technology established by them and argued that this Court may nullify the effect of the direction given by the learned Single Judge in its entirety. He submitted that the discretion exercised by the High Court in declining the appellant's prayer for injunction does not suffer from any legal error and this Court may not interfere with the impugned orders bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion." 14. The proposition of law laid down in Wander Ltd. v. Antox India (P) Ltd (supra) was reiterated in N.R. Dongre v. Whirlpool Corporation (supra) in which this Court considered the correctness of an order of temporary injunction passed by the learned Single Judge of the Delhi High Court in a suit filed by the respondents to restrain defendants from manufacturing, selling, advertising or in any way using the trade mark `Whirlpool' or any other trade mark deceptively or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on the face of the record or refusal of the High Court to grant injunction in terms of the prayer made by the appellant has resulted in manifest injustice. A little journey in the backdrop of the case shows that the only ground on which the appellant sought temporary injunction against the respondents was that the word `Skyline' is a specific/distinct word and being a prior user, it was entitled to seek a restraint against the respondents from using that word in the name of the Institute of Engineering and Technology established by them. The learned Single Judge, after examining the rival pleadings and material placed before him recorded a well reasoned finding that the appellant has failed to make out a prima facie case. The learned Single Judge opined that the word `Skyline' is a generic word because the same is being used by thousands of persons and institutions as part of their trading name or business activities. The learned Single Judge noted that while the plaintiff is neither approved by AICTE nor affiliated with any university, the respondents have obtained the requisite recognition and affiliation from the concerned statutory bodies and 240 students have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word to the exclusion of others. 19. There is another reason for declining the appellant's prayer for grant of temporary injunction. The appellant is shown to have started Skyline Business School in 1997 as one of its division but has conveniently not mentioned that it had started another institution under the aegis of Asian Educational Society housed in the same building where the appellant claims to have its registered office. After three years of starting Skyline Business School, the Director of the appellant vide his letter dated January 4, 2000 permitted the President, Asian Educational Society to use the trade mark Skyline Business School, name and the logo albeit without disclosing as to when Skyline Business School was registered under the Trademarks Act, 1999. Thereafter, Skyline Group's Asian Educational Society through its President, Shri Kamal Puri entered into an agreement dated 9.12.2001 with Manipal Academy of Higher Education (deemed university) for establishing a branch campus at Skyline Business School, Delhi. Sikkim Manipal University also approved Skyline Business School as a University Study Center for taking management programme under distance educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it necessary to discuss the judgments on which reliance has been placed by Shri Sudhir Chandra. 21. Although, during the pendency of the suit, the appellant got registration of trade marks `Skyline MEDALLIST' under No. 795085 and `Skyline Institute' under No. 795086 in class 16 and its prayer for amendment of the plaint was granted by the High Court on 24.8.2006, but, that by itself, is not sufficient for entertaining the appellant's prayer for temporary injunction to restrain the respondents from using the word `Skyline' as part of the Institute of Engineering and Technology established by them. 22. We may now advert to C.A. No. 1362/2005. The respondents' grievance is that after having reached the conclusion that the learned Single Judge was not justified in restraining the respondents from starting new courses in business management, etc. and directing them to append a note in the advertisement that they are in no way related to the appellant, the Division Bench should have set aside all the directions impugned before it. We find merit in the contention of the respondents. When the Division Bench found that the learned Single Judge ought not to have given d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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