Analysis Of Mondelez India Foods Pvt. Ltd. And Anr. v/s Neeraj Food Products:

Delhi HC Ruling In Decades Old Trademark Dispute

Introduction
"Trade mark" 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

Parties
Plaintiffs:
Mondelez India Foods Private Limited (formerly Cadbury India Ltd.)
Cadbury Schweppes Overseas Limited

Defendants:
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 Due to the repeated absence of the defendant the court issued ex parte on 24th April 2006, which was later repealed on 25th July 2006, as the absence of the defendant was not intentional.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 plaintiff's product.

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.

Court's Judgment
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 pillow pack.
• 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.

Conclusion
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.

Reference:

1. Sec 2 (zb), The Trade Marks Act, 1999
2. https://www.wipo.int/trademarks/en/
3. MANU/DE/2622/2022
4. Where the Court is satisfied:
   
   1. that a suit must fail by reason of some formal defect, or
   2. 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 claim.
5. Consequence of disobedience or breach of injunction:
   
   1. 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.
       
   2. 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.
6. Procedure in case of assignment before final order in suit:
   
   1. 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.
       
   2. 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 sub-rule (1).
7. MANU/SC/0115/1959
8. MANU/DE/3460/2022
9. https://www.uschamber.com/intellectual-property/2022-international-ip-index
10. https://www.drishtiias.com/to-the-points/paper3/intellectual-property-rights

Written By:

1. Kartik Rathee and
2. Manoj Kumar Srivastava

Also Read:

• Trade Dress Protection Position In U.S And India An Analysis