We all are familiar with the popular chocolate product Cadbury Gems, manufactured by Mondelez one of the leading manufacturer of confectionary chocolate products worldwide. In a much-awaited suit pending since 2005, the Delhi High Court Bench of Justice Pratibha Singh has granted a permanent and mandatory injunction against, Neerja Food Products, an Indian Company, and has directed them to pay Rs.15, 86,928 to Mondelez India Foods Private Limited (earlier Cadbury Gifting India) for infringing the rights of manufacturing “Cadbury Gems”. The court observed, “The test in such a matter is not that of absolute confusion. Even Likelihood of confusion is sufficient”. In 2011, the parties had submitted to the court that the dispute was settled but later a fresh application was filed under Order 39 Rule 2A CPC as settlement talks failed.
The present suit was filed by Mondelez India Foods Private Limited in Aug 2005, seeking a permanent and mandatory injunction and damages for infringement of trademark and copyright, passing off, unfair competition, and other reliefs. The case of the Plaintiffs was that Neeraj Food Products launched a chocolate product under the mark ‘JAMES BOND/ JAMEY BOND’ with an identical color scheme, layout, and arrangement as that of the Plaintiffs’ ‘CADBURY GEMS’/‘GEMS’ products, the blue/purple packaging with multi-colored buttons of the defendant product was deceptively identical to Cadbury Gems. The plaintiff claimed that it holds the trademark for “Cadbury Gems” and “Gems” products. The plaintiff also claimed copyright for the artistic works featuring the character “GEMS BOND” that was used by the plaintiff for marketing and advertisement of its product.
Neerja Food Products had been irregular in its appearance contributing to the delay of the matter. The defendant initially entered appearances, but later the matter went ex- parte, also the defendant failed to submit any supporting documents except for a few kacha invoices. An interim injunction had been in force in the case since May 2007.
The court while deciding the matter of Mondelez India Foods Pvt. Ltd and Anr v. Neeraj Food Products referred to the judgments of the Supreme Court where the test of infringement and deceptive similarity of competing marks is well settled.
In the matter of Corn Products Refining Co. v. Shangrila Food Products Ltd., the Supreme Court observed that “in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and similarity of the idea in the two marks is reasonably likely to cause confusion between them.”
In the matter of Parle Products (P) Ltd v. J.P &Co., the Court held that it is the similarities that has to be seen and not the dissimilarities.
Based on the legal positions the court observed an immense likelihood of similarity between the marks of the plaintiff and defendant, the product under the mark “JAMES BOND/ JAMEY BOND” sold by the defendant is a clear infringement of the plaintiff’s registered trademark “CADBURY GEMS” and the use of plaintiff’s copyright registered character “GEMS BOND”, also amounts to passing off.
The Court held that two marks are confusingly and deceptively similar. The entire colour scheme of Defendant’s product is identical to that of Plaintiff’s label and packaging.
“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’.”