CADBURY LTD Vs. TIMS FOODS PRIVATE LTD.

JUDGEMENT

(1.) THE suit is instituted by the plaintiffs for permanent injunction restraining the defendants from infringing the copyright of the plaintiffs in the artistic work comprising the Cadbury's Chocolate 'clairs and Cadbury Dairy Milk 'clairs labels/wrappers, by applying similar artistic work on defendants' goods and for restraining the defendants from using the trademark 'clairs on packaged sweets/chocolates and from using trademark deceptively similar thereto. The defendants are also sought to be restrained from infringing the registered trademark of the plaintiffs of A -GLASS -AND -A -HALF for sale of chocolate and other cognate goods. Ancillary reliefs, delivery, damages are also claimed by the plaintiffs.

(2.) VIDE ex -parte order dated 1st February, 2006, the defendants were restrained from using the wrappers/labels as of the plaintiffs or deceptively similar thereto. The defendants in spite of service failed to appear and were vide order dated 9th January, 2007 order to be proceeded against ex -parte. The plaintiffs have led their ex -parte evidence. It is the case of the plaintiff and in evidence that the plaintiffs No. 1and2 are incorporated under the laws of United Kingdom, the plaintiff No. 3 is an Indian company. Both the plaintiffs No. 1and2 are the subsidiaries of another company namely Cadbury Schweppes Plc also incorporated in U.K. and the plaintiff No. 3 is also ultimately subsidiary of the same company and they together form the Cadbury Group engaged in the business of branded beverages, chocolates/chocolate confectionary etc. and owning famous and well -known trademarks. The defendant No. 1 is engaged in the same business as of the plaintiff's and the defendant No. 2 is one of the directors of the defendant No. 1. The witness of the plaintiff has deposed that the plaintiffs are the registered proprietor of the trademark in respect of device of a A -GLASS -AND -A -HALF in class 30 and introduced Cadbury Chocolate 'clairs in India in 1972 which was packaged in a wrapper bearing label also registered in name of the plaintiffs. It is further the case that the Mark 'clairs has acquired a secondary meaning in relation to the product of the plaintiff. The wrappers/labels of the plaintiffs have been proved as Exhibit P -

(3.) THOUGH the defendants have not contested the suit but the defendants had replied to the notices got issued by the plaintiffs prior to the institution of the suit and the said correspondence has been proved as Exhibit P -4 to Exhibit P -8. It was inter -alia the contention of the defendants' in replies to the legal notices that Eclairs was a dictionary word and even in the trademark registration of the plaintiffs, no right to the exclusive use of the word Eclairs was granted. The plaintiffs have failed to prove their trademark registration though, filed on record. The said document can always be read against the plaintiff. A perusal thereof shows that no right to the exclusive use of word Eclairs was given to the plaintiff. Further, the plaintiff in spite of the objection aforesaid of the defendants have not made out any case for grant of injunction with respect to the use of the word Eclairs by the defendants.