RISK IT TO GET THE BISCUIT :BRITANNIA INDUSTRIES Ltd Vs ITC LIMITED.

INTRODUCTION 

FMCG trademark ITC Limited and Britannia Industries Limited recently know off their year long legal battle.

The Delhi High Court was carry forth that ITC Limited have customized their wrapping of the goods “SUNFEAST FARMLITE 5-SEED DIGESTIVE” and ‘SUNFEAST FARMLITE VEDA DIGESTIVE’ for which Britannia has no approval.

Britannia dragged ITC to the court, state that they have been manufacture and selling “SUNFEAST FARMLITE 5-SEED DIGESTIVE” biscuits in packing which is unrepresentatively like to the packing in which it sells its “NUTRI CHOICE DIGESTIVE” biscuits, and such adoption of confusingly alike packing, amounts to infringement of its register trademark.

Britannia also alleges that ITC is indulge in temporary off their “SUNFEAST FARMLITE 5-SEED DIGESTIVE” biscuits as those of Britannia.[1]

Arguments by Britannia:

Britannia highlighted the following similarity in ITC’s product:

• Use of the colour design of red and yellow, with yellow on left side of the pack and red on the right;

• Depiction of the figure of the biscuit on the right side;

• Impression the brand name of the company and of the biscuit on the body of the biscuit in alike font and method,

• Use of the word “Hi-Fibre”, above the name of the biscuit,

• Depiction of the terms “NUTRI CHOICE” in the case of Britannia, and “5-SEED DIGESTIVE” in ITC, on a white backdrop,

• Depiction of two sheaves of wheat under the picture of the biscuit on the right area of the pack beside with scattered grains of wheat,

• An orange shading at the intersection of the yellow and the red colour on the pack, and

• Depiction of the term “digestive” in red letters on the pack.

Arguments by ITC:

ITC, on the other hand, stated:

• Britannia’s pack contain two colours (red and yellow), whereas ITC’s pack contain (red, yellow and saffron);

• Yellow is the predominant colour of Britannia’s bundle while red is the predominant color in case of ITC;

• Britannia’s pack predominantly displays the trademark name “NUTRI CHOICE” in large green letters, whereas ITCs’ trademark name is “FARMLITE” printed in brown letters.

• ITC’s pack contains a vertical curved band towards the centre of the pack, in which the seeds contained in its biscuits are reflect from top to bottom below the head “Power Seeds”, with a picture of every seed i.e, flak seeds, chia seeds, watermelon seeds, sunflower seeds and pumpkin seeds and

• The trademark name of ITC, “SUNFEAST FARMLITE DIGESTIVE” is predominantly display on the biscuits, in the photograph on the impugned wrap up.

Judgement by Single Bench:

The Bench of honour C. Hari Shankar held that packaging of both goods are not related so as to cause deception or misunderstanding.

The court thought that the test for a case of breach or passing off is that of confusing or unrepresentative similarities, and the courts must delve upon as to whether there is a unrepresentative extent of similarity between the marks irrespective of their individual dissimilar features, and the move toward must emphasise upon the similarities, rather than the dissimilarities between those marks.

The court explain the differences between the words “deceptive” and “basis confusion” under Sections 29(1) and (2) respectively that both states of mind, of which no physically tangible evidence can ever be create, and if similarities can cause deception or misunderstanding, dissimilarities can also obviate several such chance.
 

The Bench said that most significant assessment that the courts are necessary to make is upon the features of the rival marks, which are most prominent, and if there is difference in the prominent or essential features of the rival marks, so as to impress the mind of the individual of medium intelligence and incomplete recollection, no finding of obvious or deceptive similarities can be reached into.

Relying upon many precedents and Defendant’s arguments, the Bench dismissed the allegations.

Judgement by Division Bench:

Before the Division Bench of Justices Manmohan Singh and Navin Chawla, ITC reproduced its modified wrapping of its “SUNFEAST FARMLITE 5-SEED DIGESTIVE” and ‘SUNFEAST FARMLITE VEDA DIGESTIVE” biscuits. Below attach are the customized packs of both the biscuits.

written by:

 Tanu Priya.