Gems vs James Bond: Bond fined Rs. 16 Lakh
In an interesting court battle, your favourite James Bond, has been fined Rs. 16 lakhs, by Delhi High Court, for making a false attempt to acquire or eat favourite chocolates, GEMS.Delhi HC grants Rs 16 lakh damages to Cadbury for theft of 'Gems'After 'Facebook vs. Facebake', its now 'Cadbury Gems vs. James Bond': The sanctity of Intellectual Property Rights in India are under scrutiny once againThe allegation of owners of brand ‘CADBURY GEMS’ or ‘GEMS’ was that the newly launched ‘JAMES BOND’ brand is similar to that of GEMS, in colour scheme, layout, and arrangement.GEMS owners also alleged that “James Bond” also stood in infringement of the copyright and trademark registration, under its former name, Hindustan Cocoa Products Ltd., in respect to a character referred to as “Gems Bond”, often used in various marketing campaigns of their product.The Court observed that the packaging of the ‘GEMS’ product is very unique, with illustrations of colourful button chocolates on a blue/purple base with the mark ‘GEMS’ depicted in a number of colours and a splash in the middle, which is very well known to the young and the old alike.Numerous “GEMS” advertisements feature the phrase “GEMS BOND,” and some examples have also been made public. The new JAMES BOND/ JAMEY BOND, also featured same colourful button chocolates and the mark “JAMES BOND”/”JAMEY BOND” with the same blue/purple foundation.The original “GEMS” appeared on a brown background and so was the case with the new launch. Even the label and packaging for the old product shared the same colour palette as the new product. Additionally, the marks are misleadingly and confusingly similar. Therefore, the court categorised the situation as an instance of the thing speaks for itself.Thus, referring to the judgement in Corn Products Refining Co. v. Shangrila Food Products Ltd., (1960) 1 SCR 968 and Parle Products (P) Ltd. v. J.P. & Co., Mysore, in which the contention of the test of infringement and deceptive similarity of competing marks was settled, wherein it was observed that “the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them and the Court has to see the similarities and not the dissimilarities.”The Court also placed reliance on the decision of ITC Ltd. v. Britannia Industries Ltd. , in which it was observed that “Where the product is eatable like a biscuit, the colour and the colour scheme of the packaging play an important role in the consumer making an initial choice and in enabling a discerning consumer to locate the particular brand of a manufacturer.”Further, while discussing the concept of ‘initial interest in the same judgment, the Court relied on Baker Hughes Limited v. Hiroo Khushalani, while observing, “In some cases, however, it is also possible that a purchaser, after having been misled into an initial interest in a product manufactured by an imitator, discovers his folly, but this initial interest, being based on confusion and deception, can give rise to a cause of action for the tort of passing off as the purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies.”However, that may not be entirely true when it comes to products like biscuits. The packaging of a biscuit does become associated with the manufacturer or brand. The colour of the wrapper would certainly play an important role.In the present case, the Court opined, inter alia, that the product- ‘GEMS’ is also usually liked and consumed by small children in both urban and rural areas. Therefore, in such a case, the test shall not be limited to that of absolute confusion, but even the likelihood of confusion shall be deemed sufficient.Hence, the product’s layout and the colour combination of the packaging play a vital role when making a purchase. Moreover, chocolates are not merely sold in retail stores or outlets but also at roadside shacks, paan shops, patri vendors, kirana stores and stalls outside schools, etc. Thus, considering that the class of consumers the product is targeted at is children, the likelihood of confusion stands high.In conclusion, it can be inferred by the Delhi High Court’s decision that the test for the likelihood of confusion stands on several factors, including the product category in dispute and the consumer demographic it appeals to. As observed by the Court, ‘almost everyone’s childhood is associated with Cadbury Gems’; the product was popular amongst many consumers of all ages and across socio-economic backgrounds. Further, the strikingly similar colour scheme of the packets and layouts and the phonetic sounds of the two products were enough to inspire a “likelihood of confusion” at the point of purchase by the consumer, which led the Court to take a firm stand in favour of the GEMS, asking James Bond to stop playing fool and pay a fine or Rs. 16 Lakhs.In this court battle between Mondelez Indian Foods Pvt. Ltd, formerly Cadbury India Limited (Plaintiff) and Neeraj Food Products (Defendants), the Delhi High Court issued a permanent and mandatory injunction against the new brand for trading “James Bond”- a chocolate product which bore deceptive similarity to Cadbury’s trademark “Gems”. The Court also imposed a fine of INR 15 Lakhs on the defendant for the copyright infringement.
Dr. Ajay Kummar Pandey( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )Advocate & Consultant, Supreme Court of India & High Courts4C Supreme Law International, Delhi, NCR. Mumbai & DubaiTel: M- 91- 9818320572. Email: email@example.com