FMI LIMITED Vs. ASHOK JAIN

JUDGEMENT

(1.) The plaintiff has filed the instant suit for permanent injunction, infringement of trademark, passing off, damages and delivery up etc. In a suit of this nature, present application is filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (CPC) seeking ad interim injunction. On the very first date, when the matter was listed, the defendants also appeared on caveat. The Court passed, after hearing the parties, order dated 14th February, 2005 restraining the defendants from launching in the market their measuring tapes and components thereof under the impugned trademark Freedom. It is now to be considered as to whether to confirm this order, as prayed for by the plaintiff or vacate this order agreeing with the submissions of the defendants. Arguments were accordingly heard on this aspect.

(2.) The plaintiff, FMI Limited, is engaged in the business or manufacturing and/or marketing and export of the measuring tapes and parts/components thereof for the last over five decades and is trading under the trademark Freemans. It is claimed in the plaint that this trademark was adopted in the year 1950 by National Tape Co., which was a partnership firm. This partnership firm had also a sister concern, namely, Freemans Sales Pvt. Ltd. During the family settlement the trademark Freemans and Pvt. Ltd. Company i.e. Freemans Sales Pvt.Ltd. was allotted to Mr. Madan Mohan Nayar, the Chairman and Managing Director of the plaintiff company, who assigned the same to the plaintiff company and, thus, plaintiff is the owner of trademark Freemans.

(3.) It is averred in the plaint that the plaintiff's Freemans products had a modest beginning in 1950, when the plaintiff's predecessors introduced Metal Wired Tape for the first time in the country. This marked the beginning of the measuring tools industry in India. Encouraged by the response, the first Indian Freemans fiberglass tape measures was introduced in 1962 and steel tape measures and tape rules were introduced in 1966 with American technical knowhow. It has constantly upgraded its technology and thus improved the quality of its product as a result of which the plaintiff has also earned worldwide reputation and is having established markets in over sixty countries including Spain, South Africa, Argentina, Brazil, Australia, USA, UK, Greece, Peru, Chile, UAE, Hungry, Ireland etc. It is also claimed that to establish distribution network for serving all the European countries, EUROFreemans S.A. was established in Barcelona (Spain) which substantially increased the market penetration in Europe. The sale of the plaintiff's product is increasing tremendously. It was Rs. 14.12 crores in 1997-98, Rs.18.55 crores in 1998-99, Rs.19.38 crores in 2000-01 though it reduced thereafter and sale figures for 2003-04 are stated to be Rs.16.25 crores. It is also the case of the plaintiff that it has its own RandD division, where all designing of new product development and new technology is undertaken with latest computerized techniques. The plaintiff is spending a huge amount on research and development as well as sales promotion in the form of advertisements etc., particulars whereof are given in para 8 of the plaint.