Delhi HC Decrees Suit Against Infringement In Favour Of Cadbury Gems

The Delhi High Court, on July 26, in a civil suit seeking permanent and mandatory injunction and damages for infringement of trademark and copyright, passing off, unfair competition and other reliefs, observed that, “The test in such a matter is not that of absolute confusion. Even likelihood of confusion is sufficient.”

Justice Pratibha M Singh decreed the suit in favour of the plaintiff and held that the acts of the defendant amounted to infringement of trademark, passing off and the plaintiff was entitled to damages. 

The court awarded damages to the tune of Rs. 10,00,000/- and an actual cost of Rs. 15,86,928/- in terms of the prayer clause.

Facts

The plaintiffs claimed ownership in the trademark ‘CADBURY GEMS’/‘GEMS’ which was the subject matter of the instant suit.

The case of the Plaintiffs was that the Defendant launched a chocolate product under the mark ‘JAMES BOND’ with an identical colour scheme, layout, and arrangement as that of the Plaintiffs’ ‘CADBURY GEMS’/‘GEMS’ products.

The plaintiff claimed that it held the copyright in the artistic work which pertained to the character ‘Gems Bond’ for promotion of Gems.

The instant suit was filed in 2005 and in 2007 prayer for interim injunction was allowed. The documents in relation to the registered trademarks were submitted before the Court by the plaintiff.

Decision

The Court observed that, “Insofar as the documents of user filed by the Defendant are concerned, there is not a single advertisement, which has been placed on record. There are only a few kacha invoices, all of which date back to the years 2001-02. No other documents have been placed by the Defendant showing user.”

The Court relied upon Parle Products (P) Ltd. v. J.P. & Co., Mysore [AIR 1972 SC 1359], wherein it was held that the Court has to see similarities and not the dissimilarities. In that judgment, it was held that, “Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in detail might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own.”

The Court, in the instant matter, held 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 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.” 

It was further observed that, “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 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 civil suit was decreed in favour of the plaintiff.