Analysis Of Mondelez India Foods Pvt. Ltd. And Anr. v/s Neeraj Food Products:
Delhi HC Ruling In Decades Old Trademark DisputeIntroduction
means a mark capable of being represented graphically and which is
capable of distinguishing the goods or services of one person from those of
others and may include shape of goods, their packaging and combination of
colors. trademark registration is valid usually for ten years. It can be renewed
indefinitely on payment of additional fees. Trademark rights are private rights
and protection is enforced through court orders.
On 26th July, 2022, a single bench judge of Delhi High Court in Mondelez India
Foods Pvt. Ltd. And Anr. V. Neeraj Food Products MANU/DE/2622/2022 issued a
permanent injunction against Neeraj Food Products for selling Their chocolate
product under the name "JAMES BOND," which is confusingly similar to the "GEMS"
brand of Mondelez India Foods Private Limited (formerly Cadbury India Ltd.).The
Court also ordered Neeraj Food Products to pay Cadbury upto 15 lakhs in damages.
This legal battle began in 2005, Mondelez India Foods Private Limited formerly
known as Cadbury India limited, a company which started its branch in India in
1947, filed a suit against Neeraj Food Products alleging them for breaching the
copyright, by selling a product which they named as JAMES BOND, which
Mondelez India Foods Private Limited (formerly Cadbury India Ltd.)
Cadbury Schweppes Overseas Limited
Neeraj Food Products
Proceedings Of The Case
The case was first listed on 4th October 2005, after which summons were issued
to the defendant (Neeraj Food Products). Due to the repeated absence of the
defendant the court issued ex parte on 24th April 2006, which was later repealed
on 25th July 2006, as the absence of the defendant was not intentional.
On 25th May 2007 the hon'ble court allowed interim injunction on the
application, restraining the defendant from using the trademark JAMES BOND
and/or any other trade mark which may be deceptively similar to that of
In 2011 both the parties decided to settle the dispute outside the court and
filed an application under Order XXIII Rule 3 of CPC. However on 12th May 2011
the counsel from the plaintiff's side came in front of the court and said that
the settlement talk has resulted in failure and they are filling a fresh
application under Order 39 Rule 2A of the CPC. On 30th November 2011 the
defendant proceeded against ex parte.
The Evidence of the case was conducted from 22nd February 2013, during this the
plaintiff presented Original certified copies of Trademark Registrations of the
Plaintiffs in respect of the 'GEMS' products, their registrations worldwide in
respect of the trademark 'GEMS'/ 'CADBURY GEMS', trademark license agreement
between Cadbury Schweppes Overseas Limited and Cadbury India Limited, sample of
the Plaintiffs' packaging for its products sold under the brand name 'GEMS', and
a few sales, advertising/promotional figures from different sources along with
the original packaging of the defendant's product as the evidence. The Evidence
was concluded on 3rd July 2013.
After which the matter was pending hearing in the category of Finals.
The matter was then taken up on 8th March 2022, on which date due to change of
name etc., time was sought by the Plaintiffs to file an application under Order
XXII Rule 10 of the CPC. The application for the above was filled which was then
taken up on 4th April 2022. The name of the plaintiff 1 was changed from Cadbury
India to Mondelez India Pvt Ltd.
According to the reports provided by Mondelez India Pvt. Ltd, the earliest
trademark for CADBURY'S MILK CHOCOLATE GEMS was done on 20th May 1968.
A perusal document filed by the defendant shows that the defendant had filed the
trademark application in August 2002 in class 30, in respect of goods being all
kinds of food products including confectionery, churan goli etc.
During the hearing of the case the hon'ble court noted the following
similarities between the products:
� Defendant's pillow pack is of the same blue/purple background & of same size
as that of plaintiff.
� Plaintiff pillow pack has a brown oval in the center, while the defendant has
placed a diamond in brown color at the center of the pillow pack.
� Both the parties have displayed the origin of the product at the top right
corner, with CADBURY'S & NEERAJ.
� The brown oval & brown diamond on plaintiffs' & defendant's pillow pack are
both bordered by blue/purple borders.
� Both the parties used white color to write GEMS & JAMES BOND, on top of the
� The defendant has also copied the plaintiffs' scripting of the trade mark
'GEMS' on the pillow pack. As both GEMS & JAMES BOND are written in an uneven
script on the top right corner of the pillow pack.
� Just as the Plaintiffs, the Defendant has also created a visual impression of
an explosion in blue/purple color in the middle with lines emanating from the
center and tablets flying out.
� The color combination of the tablets adopted by the defendants is also similar
to that of plaintiffs'.
� The Defendant has also placed half chocolate-tablets showing the chocolate
center in the exact same manner as the Plaintiffs.
Additionally, the Defendant has conceptualized the impugned product 'JAMES BOND'
by being inspired by the character namely 'GEMS BOND', as used by the Plaintiffs
for promotion of their 'GEMS' branded products.
The court took a look into two of the seminal judgments of the Supreme Court for
the test of infringement and deceptive similarity. In Corn Products Refining Co.
v. Shangrila Food Products Ltd. MANU/SC/0115/1959 , the hon'ble Supreme Court
observed that the said question has to be approached from the point of view of a
man of average intelligence and imperfect recollection. It was observed that to
such a man the overall structural and phonetic similarity of ideas in the two
marks is reasonably likely to cause confusion between them.
In another such judgment of Parle Products Pvt. (P) Ltd. v. JP & Co. It was held
that the court has to see similarities between the product and not the
dissimilarities between them.
Court held that Defendant's product sold under the mark 'JAMES BOND'/'JAMEY
BOND' has clearly infringed the Plaintiffs' rights in the mark 'CADBURY GEMS',
Delhi High Court issued a permanent injunction against Neeraj Food Products for
selling Their chocolate product under the name "JAMES BOND," and actual costs of
Rs.15,86,928/- are awarded in favour of the Plaintiffs
The court said that The products in question are chocolates, which can be eaten
by both children and adults. Both in urban and rural areas, small children
frequently consume the "GEMS" product. It further added that- "The test in such
a matter is not that of absolute confusion. Even likelihood of confusion is
sufficient." It is clear from a comparison of the Defendant's infringing product
and its packaging that it is an exact replica of the Plaintiffs' "CADBURY GEMS."
It was noted that the fact that these products are sold in both larger and
smaller pillow packs, which may prevent the mark from being fully visible, is an
important fact. The smallest selling unit of the Plaintiffs' product i.e., the
pillow pack, is even available for 1 rupee to 5 rupees. Therefore, the
packaging's color scheme, layout, and overall appearance of the product all
matter greatly at the point of sale.
Additionally, chocolates are offered for
sale in a variety of locations, including roadside shacks, paan shops, patri
vendors, kirana stores, and stalls outside of schools, among others. As a
result, there is a very high chance of confusion, especially given the target
market for the product, which is kids.
The court judgments in recent cases like Nikhil Chawla v. The Coca Cola Company
shows that IPR are now more than ever protected in India. In the annual report
compiled by US Chambers of Commerce India now ranks 43rd out of 55 countries on
the International Intellectual Property Index after increasing its overall IP
score from 38.4% to 38.6%. The expansion of the innovation ecosystem with
improved IPR safeguards is necessary for the success of India's flagship
programmes, Make in India and Start up India.
- Sec 2 (zb), The Trade Marks Act, 1999
- Where the Court is satisfied:
- that a suit must fail by reason of some formal defect, or
- that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter of suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to
withdraw from such suit or such part of the claim with liberty to institute a
fresh suit in respect of the subject-matter of such suit or such part of the
- Consequence of disobedience or breach of injunction:
- In the case of disobedience of any injunction granted or other order made
under rule 1 or rule 2 or breach of any of the terms on which the injunction
was granted or the order made, the Court granting the injunction or making
the order, or any Court to which the suit or proceeding is transferred, may
order the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison
for a term not exceeding three months, unless in the meantime the Court
directs his release.
- No attachment made under this rule shall remain in force for more than
one year, at the end of which time, if the disobedience or breach continues,
the property attached may be sold and out of the proceeds, the Court may
award such compensation as it thinks fit to the injured party and shall pay
the balance, if any, to the party entitled thereto.
- Procedure in case of assignment before final order in suit:
- In other cases of an assignment, creation or devolution of any interest
during the pendency of a suit, the suit may, by leave of the Court, be continued
by or against the person to or upon whom such interest has come or devolved.
- The attachment of a decree pending an appeal therefrom shall be deemed to be
an interest entitling the person who procured such attachment to the benefit of
- Kartik Rathee and
- Manoj Kumar Srivastava