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2013 (4) TMI 6 - DELHI HIGH COURTInfringement of trademark - Permanent injunction seeked against infringement and passing off - plaintiff has also prayed for damages and delivery up of all infringing articles qua the plaintiff's trademark “FREEMANS” adopted for measuring tapes and part components thereof - 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? - Held that:- Applying the test laid down in Amritdhara Pharmacy v. Satya Deo Gupta [1962 (4) TMI 65 - SUPREME COURT] to the facts of the present suit, it is found 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. 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 defendants seem to have the intention of passing off their product as that of the plaintiff by adopting a name which is similar to the plaintiff's trademark. Also the defendant no.1 was the earlier distributor of the plaintiff's products shows that adoption of the said trademark was not merely a coincidence and that he had the intention of passing off his products as that of the plaintiff's. Thus a permanent injunction restraining the defendants from launching, using, advertising the trademark FREEDOM with respect to measuring tapes/ components thereof passed. No reason to decree the suit with regard to delivery up as the defendants have not yet launched their product in the market due to a temporary injunction operating against them, thus the plaintiff has not suffered any loss the prayer for damages also stand dismissed. The suit stands disposed. Decree be drawn accordingly.
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