Delhi High Court imposes a cost of over Rs 15 lakh on Neeraj Food Products for violating the rights of the manufacturers of Cadbury Gems.
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Putting an end to a long-pending trademark infringement dispute related to the famous chocolate product Cadbury Gems, the Delhi High Court has permanently restrained Neeraj Food Products from using the mark ‘James’ or ‘James Bond’ for its products. The court has also imposed a cost of over Rs 15 lakh on Neeraj Food Products for violating the rights of manufacturers of Cadbury Gems.
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Mondelez India Foods Private Limited, formerly known as Cadbury India Limited, in 2005 had filed a suit before the court alleging that Neeraj Food Products or the defendant has launched a chocolate product under the mark ‘James Bond’ with an identical colour scheme, layout, and arrangement as that of its ‘Cadbury Gems’ or ‘Gems’ products.
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While Mondelez India Foods holds trademark registration for ‘Cadbury’s Gems’ and ‘Gems’, the court was also told that it also has copyright registrations for the artistic works in respect of a character known as ‘Gems Bond’ which has been used for promotion of ‘Gems’ branded products.
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Observing that Gems is one of the most popular and well-recognised chocolate products in India and almost everyone’s childhood is associated with it, Justice Prathiba M Singh in a verdict passed on Tuesday said that the entire colour scheme of the Neeraj Food Products’ product is identical to that of Cadbury’s label and packaging. The marks are also confusingly and deceptively similar, said the court.
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The court also noted 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.
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“The smallest selling unit of the plaintiffs’ product i.e., the pillow pack, is even available for Re 1 rupee to Rs 5. Hence, the product’s get-up, layout, as also, the colour combination of the packaging plays a significant role at the point of purchase,” it said, adding there is an immense likelihood of confusion, particularly considering the class of consumers that the product is targeted at is children.
Neeraj Food Products has been irregular in its appearance in the case and has contributed to the delay in the suit pending since 2005, the court said further. An interim injunction had been operating in the case since May 2007. Though the Cadbury Gems’ manufacturers had alleged contempt of court orders initially, no submission regarding continuous availability of ‘James Bond’ in the market was made at the time of final arguments.
“Accordingly, the reliefs sought in respect of delivery up and for recall of the defendant’s products are not granted at this stage. However, if the plaintiff finds any infringing products in the market, they are free to seek execution of the decree, seeking delivery up, at that stage,” said Justice Singh.
“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’,” reads the verdict.
Source : The Indian Express
