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 Singh awarded actual costs of Rs. 15,86,928 in favour of Cadbury, noting that the company had invested a sizeable sum of money in the litigation in a case where an interim injunction had been in effect since 2007. These costs included court costs, attorneys' fees, and other incidentals. Damages of Rs. 10 lakhs were granted. Mondelez India Foods Private Ltd, formerly known as Cadbury India and Cadbury Schweppes Overseas Limited, filed the lawsuit and asserted ownership of the mark "CADBURY GEMS" or "GEMS."
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 were obviously violated by the impugned packaging of the Defendant's product marketed under the mark "JAMES BOND" or "JAMEY BOND."
It was noted that Cadbury's GEMS is one of the most well-known and well-liked chocolate products in India, and that practically everyone associates their childhood with the abovementioned product.
The mark "JAMES BOND JAMEY BOND" is used on the defendant's package, which also has colourful button chocolates and the same blue/purple foundation. The trademark "GEMS" appears on both the Plaintiff's product and the Defendant's products on a brown background. The label and packaging for the Plaintiffs' product share the exact same colour palette as the Defendant's product throughout. Additionally, the marks are misleadingly and confusingly identical, it continued.
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."
In addition, the Plaintiff No.1 Mondelez holds copyright registrations in its
former name being 'M/s. Hindustan Cocoa Products Ltd.', bearing
registration numbers A-50680/90 and A-49975/89 for the artistic works in
respect of a character known as 'GEMS BOND' which character has been
used by the Plaintiffs for promotion of its 'GEMS' branded products. The
said artistic works are set out below:
Both in urban and rural settings, tiny children frequently consume the "GEMS" product.
The standard in this situation is not complete misunderstanding.
Even the possibility of uncertainty suffices.
It is clear from a comparison of the Defendant's infringing product and its packaging that it is an exact replica of the Plaintiffs' "CADBURY GEMS." The fact that these products are supplied not only in larger packs but also in smaller pillow packs, which may prevent the mark from being completely visible, is relevant "declared the Court.
It said "Additionally, chocolates are offered for sale in a variety of locations, including roadside shacks, paan shops, patri vendors, kirana stores, and kiosks outside of schools, among others.
As a result, there is a very high possibility of confusion, especially given the target market for the product, which is kids.
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.
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