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TMI Blog2013 (4) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... lar to that of the plaintiff's trademark FREEMANS. Both the competing trademarks represent the same class of goods i.e. measuring tapes. Both the trademarks also have an inherently distinct connotation i.e., the trademark has no relation with the product being sold. In addition, it should be kept in mind that while deciding cases such as the present suit, the Court should view the two trademarks from the eyes of a person with imperfect recollection. Further, the fact that the plaintiff's trademark has been in the market for over five decades and is now known globally is evidence to the fact that the plaintiff has built up a reputation in the market and its products have acquired enormous goodwill. To take advantage of this, the defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he business of manufacturing and/or marketing and exporting measuring tapes and part components thereof. The trademark FREEMANS was registered under No. 215880 on 06.12.1963, in respect of tape measures under class 9 and the same trademark were registered under No. 44095 on 26.06.1985 with respect to measuring tapes and allied goods under the same class. It is contended that the plaintiff company has been in the said business for the past five decades, during which period, the trademark FREEMANS was adopted by National Tape Co., a partnership firm. This firm had a sister concern namely Freemans Sales Pvt. Ltd. Vide a family settlement, the trademark FREEMANS and the sister concern Freemans Sales Pvt. Ltd was allotted to one Mr. Madan Mohan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts is not coincidental, but is done with an intention to confuse prospective customers with regards to the plaintiff‟s trademark FREEMANS. The plaintiff submits that this act of the defendants constitute infringement of the trademark FREEMANS and that by advertising the trademark FREEDOM and by filing an application for its registration and by using the said mark as a trading style, the defendants are trying to give the public an impression that they are associated with the plaintiff‟s product. 5. The defendants in their written statements denied that their trademark was visually similar to that of the plaintiff‟s. It was submitted that on a mere look at the two trademarks, it would be established that the manner and sty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue that arises in the present suit is whether the defendant‟s trademark is deceptively similar to that of the plaintiff‟s and whether the act of the defendants constitute infringement and passing off. 9. The Ld. Counsel for the plaintiff submits that their trademark FREEMANS, which was adopted for measuring tapes, had an inherently distinct connotation. He argued that this trademark had no relation with the product it represented. Referring to the defendants‟ trademark FREEDOM, he submitted that it was deceptively similar to that of the plaintiff‟s with regard to the fact that both these trademarks were used for the same class of good, i.e. measuring tapes and both had an inherently distinct connotation and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning that the goods are the plaintiff's goods. It is in the nature of acquisition of a quasi-proprietary right to the exclusive use of the mark or get-up in relation to goods of that kind because of the plaintiff having used or made it known that the mark or get-up has relation to his goods. Such right is invaded by anyone using the same or some deceptively similar mark, get-up or name in relation to goods not of plaintiff. The three elements of passing-off action are the reputation of goods, possibility of deception and likelihood of damages to the plaintiff. In our opinion, the same principle, which applies to trade mark, is applicable to trade name. 12. In the case of Amritdhara Pharmacy v. Satya Deo Gupta (supra), the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due to imperfect recollection. (See Kerly onTrade Marks, 8th Edition, p. 400.) 13. Applying the above mentioned test to the facts of the present suit, I find that the defendant‟s trademark FREEDOM is deceptively similar to that of the plaintiff‟s trademark FREEMANS. Both the competing trademarks represent the same class of goods i.e. measuring tapes. Both the trademarks also have an inherently distinct connotation i.e., the trademark has no relation with the product being sold. In addition, it should be kept in mind that while deciding cases such as the present suit, the Court should view the two trademarks from the eyes of a person with imperfect recollection. 14. Further, the fact that the plaintiff‟s trademark has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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