The battle began in 2005, between Mondelez India Foods Private Limited and M/s. Neeraj Food Products.
New Delhi: After a long-drawn battle of 17 years between “Gems” and “James Bond”, the Delhi High Court on Tuesday permanently restricted “James Bond” from being sold or circulated in the market.
The battle began in 2005, between Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) and M/s. Neeraj Food Products, when the former filed a petition before the Delhi High Court alleging that the latter (Neeraj Food Products) had launched a chocolate product that was identical in its packaging, colour scheme and layout, and similar to the product of “Cadbury Gems” and that the “confusing similarity” between “James Bond” and “Gems” was an infringement of the registered trademark of Cadbury Gems. The petition pleaded with the court to restrict the sale of “James Bond”.
The single bench judge of the Delhi High Court observed in its judgement delivered on Tuesday that the two products in question had “startling similarities” which had the potential of creating “absolute confusion” since this product was consumed mostly by children.
In the judgement, Justice Pratibha M. Singh said, “The products in question are chocolates which may be consumed by young and old alike. 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.”
Justice Singh further said, “A comparison of the Defendant’s (Neeraj Food Products) 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 smallest selling unit of the Plaintiffs’ product i.e., the pillow pack, is even available for Re 1 to Rs 5. Hence, the product’s get up, layout, as also, the colour combination of the packaging plays a significant role at the point of purchase. Moreover, chocolates are sold not merely in big retail stores or outlets, but also, in roadside 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 judgement came after a long hearing of 17 years full of twists and turns. According to advocates representing this case, the hearing first began in 2005 and then after subsequent hearings for at least two years, an interim injunction was passed in 2007, restricting Neeraj Food Products from selling their “James Bond” in the market.
However, in the due course of the hearing, Neeraj Food Products stopped appearing in court to present their case on the given dates, or rather started making sporadic appearances in front of the court on the hearing dates. Following their consistent absence to defend their case, the Delhi High Court in November 2011 proceeded with the suit as “ex-parte”.
There were also attempts made to settle the matter out of court, which failed. Speaking to The Sunday Guardian, Advocate Prakriti Vaishney, who appeared in this case for Mondelez, said, “Neeraj Food Products had stopped appearing for the case or made sporadic appearances since they did not have much to prove in front of the court. They even tried for an out-of-court settlement between February and May 2011, but that failed. Following the failure of the out-of-court settlement, they had stopped coming and the suit was proceeded ex-parte.”
The case was then subsequently taken up from 2013 and evidence were recorded, after which it was reserved for final hearing. The final hearing took place earlier this year and the judgement was reserved on 5 July and further pronounced on 26 July 2022.
The matter was heard by the Delhi High Court for 17 years by at least seven judges, including judges such as Justice Hima Kohli, now a Supreme Court judge, Justice Gita Mittal, former Chief Justice of Delhi High Court, Justice Manmohan and Justice Pratibha M. Singh, amongst others.
And it’s only on Tuesday, the single bench judge of the Delhi High Court, Justice Pratibha M. Singh, passed the final verdict in favour of Cadbury Gems, while permanently restricting Neeraj Food Products from using the name “James” or “James Bond” for any of its products.
In her judgement, Justice Singh said: “The defence of the Defendant (Neeraj food products) did not stand proved, especially in view of the competing packagings which have been exhibited and placed on record. 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.”
The single bench judge also slapped a fine of Rs 15.8 lakh on Neeraj Food Products for the violation of copyright and trademark acts and rules and also to compensate the petitioner in terms of litigation fees. Neeraj Food Products is a Delhi-based sole proprietorship Indian company set up during the early 2000s. The company has been engaged in manufacturing confectionaries, including chocolates.