Everyone's childhood is associated with 'Gems': Delhi High Court grants ₹16 lakh damages to Cadbury for trademark infringement

The Delhi High Court has directed an Indian company named Neeraj Food Products to pay nearly ₹16 lakh to British confectionery firm Cadbury for infringing its 'Cadbury Gems' trademark [Mondelez India Foods Pvt Ltd and Anr v. Neeraj Food Products]..Justice Prathiba M Singh noted that almost everyone’s childhood is associated with Cadbury Gems and that its brand is known to young and old.The Court said that Cadbury’s packaging is unique and it is the registered proprietor of the trademark ‘Cadbury Gems’ as well as the artistic character known as ‘Gems Bond’.There is no doubt that the defendant has infringed on Cadbury’s rights, the judge added.“…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,” the order said..The Court was dealing with a 2005 suit by Cadbury (now known as Mondelez India Foods Pvt Ltd) seeking a permanent injunction and damages against Neeraj Food Products for infringing its trademark.It was stated that the defendant was using the mark ‘James Bond’ and ‘Jamey Bond’ with the image of chocolate buttons on the same colour base on its packaging to sell its product. The marks are confusingly and deceptively similar to Cadbury’s, the Court was informed.Though the defendant had initially entered appearance, the suit later proceeded ex-parte and the defendant did not file documents to support their case, except a few raw invoices which dated back to the years 2001-2002..The High Court held that the Gems product is usually consumed by children and the test in such a matter is not of absolute confusion.Therefore, a comparison of the defendant’s infringing product and package of Cadbury’s product leaves no doubt that the former is a complete knock-off of Gems, Justice Singh said.“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 smallest selling unit of the Plaintiffs’ product i.e., the pillow pack, is even available for 1 rupee to 5 rupees. Hence, the product’s get up, layout, as also, the colour combination of the packaging plays a significant role at the point of purchase," the order said. .Justice Singh concluded that not only did the defendant infringe the plaintiff’s trademark, but it also constituted passing off and they are entitled to damages.The Court, therefore, directed Neeraj Food Products to pay an actual cost of ₹15.86 lakh to Cadbury within three months..Advocate Prakriti Vaishney appeared for Cadbury..[Read Order]