‘Cadbury Gems’ versus ‘James Bond’: And the winner is…

After two decades of being stuck in a trademark infringement suit, the Delhi high court gave a judgment in favour of Cadbury and restrained an Indian company from selling its products that are similar to Cadbury Gems.

Justice Prathiba M Singh told an Indian company on Tuesday to pay Rs 16 lakh damages to British chocolate company Cadbury for infringing the Cadbury Gems trademark.

Cadbury (now Mondelez India Foods) had filed a case against the Indian company Neeraj Food Products, who is the defendant, saying it had marketed its product as ‘James Bond’.

The purple packet of the product was the same with multi-coloured buttons in the background, which was deceptively similar to Cadbury Gems, the court was told.

Cadbury also said they had done a promotional advertisement earlier, in which they had marketed their product using ‘Gems Bond’ as a character and so the defendant was using this name to gain an unfair advantage.

The court said Gems, as a product is recognised by the old and the young alike and the defendant’s mark, is similar to that of the Gems.

“Almost everyone’s childhood is associated with the consumption of Gems.

“The entire colour scheme of Defendant’s product is identical to that of the label and packaging of Gems.

“The marks are confusingly and deceptively similar as well,” the court said.

The court remarked that the test of infringement in such a matter is not that of absolute confusion, but 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 defendant’s product is a complete knock-off,” the court said.

The court said the similarities between both the products do not end there as Gems is also sold in smaller pillow packs, due to which the mark may not even be fully visible.

“The smallest selling unit of Gems, that is the pillow pack, is even available for 1 rupee to 5 rupees.

“Hence, the product’s get-up, layout, and colour combination of the packaging play a significant role in selling the product.

“Since the product is not only sold at big shops but also at paan shops, it will create confusion in the mind of the buyer,” the court said.

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