Case Title: Mondelez India Foods Pvt. Ltd. & Anr. V. Neeraj Food Products
The Delhi High Court has imposed a permanent and binding injunction on a manufacturer, Neeraj Food Products, for violating Cadbury's trademark "GEMS" by using the misleadingly similar mark and packaging "JAMES BOND," which was modelled after the persona "GEMS BOND" that Cadbury uses to promote their product.
In addition, Justice Pratibha M. Singh granted Cadbury actual costs in the amount of Rs. 15,86,928 after noting that the company had incurred significant costs for the litigation in a case involving an interim injunction that had been in effect since 2007. These costs included court costs, attorneys' fees, and other incidentals. Damages of Rs. 10 lakhs were granted. Using the trademarks "CADBURY GEMS" or "GEMS," Mondelez India Foods Private Limited (previously Cadbury India Ltd.) and Cadbury Schweppes Overseas Limited filed the lawsuit. They argued that the defendant had violated their registered trademark, copyright registrations including the character "GEMS BOND," and passing-off laws by using the contested mark "JAMES BOND" or "JAMEY BOND" and product packaging carrying the mark. The Court noted that the Plaintiffs' rights in the mark "CADBURY GEMS" and the copyright in regard to the items sold under said mark was obviously violated by the impugned packaging of the Defendant's product marketed under the mark "JAMES BOND" or "JAMEY BOND." It was noted that the consumption of Cadbury's GEMS is one of the most well-known and well-liked chocolate goods in India and that practically everyone associates their childhoods with the abovementioned product.
"The Defendant's packaging uses the mark 'JAMES BOND'/ 'JAMEY BOND' with the same blue/purple base and colourful button chocolates. The mark 'GEMS' is depicted on a brown background in Plaintiff's product, and also, in Defendant's products. The entire colour scheme of Defendant's product is identical to that of Plaintiff's label and packaging. The marks are also confusingly and deceptively similar," it added.
The court also found that the character "GEMS BOND," which was used by Cadbury to advertise its "GEMS" range of products, served as inspiration for how the defendant envisaged the in-question product, "JAMES BOND."
"The 'GEMS' product is also usually consumed by small children, both in urban and rural areas. The test in such a matter is not that of absolute confusion. Even the likelihood of confusion is sufficient. A comparison of the Defendant's infringing product and the packaging thereof leaves no manner of doubt that the same is a complete knock-off, of the Plaintiffs' 'CADBURY GEMS'. The significant fact is that these products are sold not only in bigger packs but also in smaller pillow packs, due to which the mark may not even be fully visible," the Court said.
It added "Moreover, chocolates are sold not merely in big retail stores or outlets, but also, in roadside shacks, paan shops, patri vendors, Kirana stores and stalls outside schools, etc. Thus, there is an immense likelihood of confusion, particularly considering the class of consumers that the product is targeted at, that is, children."
In order to settle the lawsuit, the court ordered the defendant to pay Cadbury's costs and damages within three months, failing which, Cadbury would be free to seek execution of the judgement or pursue other legal remedies.