New Delhi, July 27 The Delhi High Court has restrained a manufacturer for infringement of Cadbury's trademark 'GEMS' by using a confusingly similar trademark 'JAMES BOND' and imposed a cost of nearly Rs 16 lakh for 'damages' caused to the British Chocolate maker.
"The Plaintiff's (Cadbury) GEMS product is one of the most popular and well-recognized chocolate products in India. Almost everyone's childhood is associated with the consumption of the Plaintiff's 'CADBURY GEMS'/'GEMS'," Justice Prathibha M. Singh said in a recent order.
Hearing the 2005 suit by Cadbury (now known as Mondelez India Foods Pvt Ltd) seeking a permanent injunction and damages against Neeraj Food Products (defendant) for infringing its trademark, the court further held that the defendant has failed to establish that the Plaintiffs' mark 'CADBURY GEMS'/'GEMS' is common to trade.
It further pointed out that "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 order highlighted: "Chocolates are sold not merely in big retail stores or outlets, but also, in road side 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."
After going through the detailed submissions of the parties, the court said: "Accordingly, actual costs of Rs 15,86,928 are awarded in favour of the Plaintiffs, in terms of the relief as sought in paragraph (D) of the prayer clause as set out in the Plaint."
In the order, the court noted that the defendant has been irregular in its appearance before the Court and has contributed to the delay of the 2005 suit.
"The defendant has also not denied having sold chocolates under the infringing packaging. The search report of the defendant placed on record shows that the defendant had adopted a packaging with the same illustrations and blue/purple colour as that of the plaintiffs' product. Therefore, the impugned packaging of the defendant's product sold under the mark 'JAMES BOND'/'JAMEY BOND' has clearly infringed the plaintiffs' rights in the mark 'CADBURY GEMS', as also, the copyright in respect of the products sold under the said mark," read the order.
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