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Home / Opinion / Views /  Why ‘Fake in India’ beats ‘Make in India’

In the 17 years that the trademark infringement case of Mondelez Foods Private Limited and Another versus Neeraj Food Products took to wind its way through the Indian legal system, Daniel Craig had astounded the British spy franchise James Bond’s millions of fans worldwide by being picked as the next James Bond—back in 2005—and had then gone on to live, love, fight, retire and resurface across five hugely successful films, before eventually dying on-screen and leaving the franchise’s future tantalisingly poised.

The blonde, heavily muscled and notably chest hair-less Craig, with his indefinable accent which was not quite British upper class or working class, had nevertheless managed to win over even diehard fans of Sean Connery—arguably the definitive Bond—with his portrayal of a less saturnine, more human and decidedly less chauvinistic agent with the ‘licence to kill’.

Of course, the fact that it was the movies, where audience come prepared to suspend belief, helped. In the magical world of films, anything could happen—James Bond could lose his Scots burr, the head of Britain’s spy agency could be a woman and Miss Moneypenny could be black—but in the world of copyright and trademarks, Gems cannot be James.

That in essence was Mondelez’s (formerly Cadbury India Ltd) case against Neeraj Foods, which it claimed had infringed its trademark and protected intellectual property with its “James Bond" (the ‘Bond’ was in much smaller type on the packs) line of coloured-sugar-coated milk chocolates, nearly identical in looks and packaging to Cadbury’s famous ‘Gems’ brand of chocolates.

Cadbury also argued that vide Registration No. A-49975/89 and Registration No. A-50680/90, it had, as far back as 1989-90, registered a character called “Gems Bond" which had been used in a series of TV commercials in the early 1990s and that Neeraj Foods’ James Bond was capitalising on the awareness built by Cadbury’s expensive ad campaigns.

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It took 17 years before the Delhi High Court delivered its final judgement, permanently restraining Neeraj Foods from selling its products that were similar to Cadbury’s Gems, and awarded damages of 10 lakh and costs of 15 lakh to the plaintiffs.

In essence, the case represents everything that’s right, as well as everything that’s wrong, with our trademark and intellectual property rights laws. Mondelez should know. While it won its own trademark case, it managed to get a copyright suit filed by Danjaq LLC, the Broccoli family-owned firm which owns the copyright on the James Bond franchise, thrown out on the basis of statute of limitations!

India does have a fairly robust framework for protection of intellectual property. And that the wheels of justice, once set in motion, are virtually unstoppable. In the instant case, the defendant—Neeraj Foods—stopped showing up in court in 2006. In 2008, the defendant’s lawyer recused himself from the case, saying that his client was refusing to give him instructions. The case, nevertheless, carried on for another decade and a half, while the court doggedly went into the minutiae of the case!

But the enormous time taken to settle such disputes ends up defeating the very purpose of the legislation. In the Gem’s case, victory will at best be pyrrhic for Mondelez. Neeraj Foods has long ago morphed into a pickle and masala maker and ‘James’ Bond chocolates long consigned to history.

The US International Trade Administration’s Country Commercial Guide for India labels us one of the “most challenging" with respect to protecting intellectual property—the multiplicity of forums and jurisdictions and the enormous time it takes for the Indian judicial system to simply process a case makes India a fertile ground for manufacturers of duplicate and counterfeit products to act with impunity. With the government winding up the Intellectual Property Appellate Board (IPAB) through the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021 (4 April 2021), the pressure on the courts has only mounted.

According to a study by trade body FICCI’s Committee Against Smuggling and Counterfeiting Activities Destroying the Economy (CASCADE), India loses more than 1 trillion a year due to fake and counterfeit goods. Trade in smuggling, contraband, counterfeit and pirated goods has risen steadily in the last few years and now stands at 3.3 per cent of global trade, according to the report.

Legally, India is on sound footing. India has laws relating to Trade Marks and Brands (Trade Marks Act, 1999), Copyright laws (Copyright Act, 1957), a patents law (The Patent Act, 1970), besides the Designs Act, 2000, The geographical Indications of (Registration and Protection) Act, 1999 as well as the IT Act.

The 2016 National Policy on Intellectual Property Rights lays the framework for driving innovation in India. But the reality of lax enforcement, large information gaps, corruption and a hopelessly tie-up legal system reduces this to mere statements of intent rather than effective deterrents.

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