The court established that use of a trademark can infringe another's marked similarity leading to consumer confusion, mandating protection against unauthorized use.

JUDGMENT

Prathiba M. Singh, J.

Factual Background of the Case:

1. The present suit has been filed seeking permanent and mandatory injunction and damages for infringement of trademark and copyright, passing off, unfair competition and other reliefs. The Plaintiff No.1 - Mondelez India Foods Private Limited (formerly Cadbury India Ltd.) and Plaintiff No.2 - Cadbury Schweppes Overseas Limited claim ownership in the mark `CADBURY GEMS'/`GEMS' which is the subject matter of the present suit.

2. The Plaintiff No. 1 began its operations as a trading company in the year 1947 and is stated to be the market leader in the field of confectionary chocolate products worldwide, including in India. Some of the leading brands of the Plaintiffs include `CADBURY DAIRY MILK', `CADBURY GEMS', `CADBURY 5 STAR', `BOURNVITA' and `CADBURY PERK' and brands of newer products like, `CADBURY BYTES', `CADBURY CHOCKI', `CADBURY DELITE', and `CADBURY TEMPTATIONS'.

3. The suit was filed in August, 2005 against M/s. Neeraj Food Products which is a sole proprietary concern of Mr. Charan Das. The case of the Plaintiffs is 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 rival packagings of the Plaintiffs and the Defendant are set out below:

4. In the suit, the Plaintiff seeks the following reliefs:

"A) the Defendant, its proprietor, partners, directors, servants, agents, distributors, franchisees, representatives and assigns be restrained by a permanent injunction restraining them from:

i) using the trade mark JAMES and/or JAMES BOND and/or any other trade mark deceptively or confusingly similar to the Plaintiffs' registered trade mark GEMS or in any other manner infringing the registered trade mark GEMS of the Plaintiff;

ii) using the pillow-packs attached as Annexure `B' to the unamended plaint or any other packaging whatsoever which is deceptively or confusingly similar to the pillow-packs of the Plaintiffs attached as Annexure `A' to the unamended plaint;

iii) in any other manner whatsoever passing off their goods as and for the goods of the Plaintiffs;

iv) substantially reproducing in material form the copyright in the artistic work of the pillow packs, a representation of which is attached Annexure `A' to the unamended plaint.

B. A decree of a mandatory injunction be passed thereby directing that the Defendant, its directors, principles, proprietor, partners, directors, employees, agents, distributors, franchisees, representatives and assigns to:

i) hand over to Plaintiffs or their nominated representative all goods, packaging and promotional material, stationery and any other material whatsoever bearing the trade mark JAMES BOND and/or the offending pillow packs and/or any other trade marks deceptively or confusingly similar to the Plaintiffs' trade mark GEMS;

ii) recall all the products, marketing, promotional and advertising materials bearing the trade marks JAMES BOND and/or the offending pillow packs and/or any other trade marks deceptively or confusingly similar to the Plaintiffs' trade marks GEMS and hand over the same to the attorneys or representatives of the Plaintiffs;

iii) to deliver to the Plaintiffs' attorneys or representatives for destruction all products, labels, prints,