Britannia vs ITC: Delhi High Court finds no case of infringement or passing off in ITC's packaging of biscuits

Britannia vs ITC: Delhi High Court finds no case of infringement or passing off in ITC's packaging of biscuits

The Delhi High Court (HC) on 5 April 2021, in the case titled Britannia Industries Ltd. (Plaintiff) v. ITC Ltd. & Ors. (Defendants) refused to grant relief to the plaintiff against ITC Ltd. The Court ruled that the packaging of ITC Ltd's "Sunfeast Farmlite 5-Seed Digestive" biscuits was prima facie not deceptively similar to that of Britannia's "Nutri Choice Digestive" biscuits.

The single-judge of the HC Justice C Hari Shankar refused to pass an interim order of injunction.

The Judge stated that "Having examined the impugned pack vis-a-vis the pack of the plaintiff, I am unable to convince myself that the pack of the defendant is so similar to that of the plaintiff, as is likely to result in deception or confusion.". The distinguishing features, in the present case, are, on the other hand, just too many. They more than counterbalance the similarities, and, prima facie, negate any possibility of confusion, much less deception."

The factual matrix of the case is that the plaintiff claimed that on 11 September 2020, it had registered a trademark on the packaging of Nutri Choice Digestive biscuits and it had been using the same since 2014. It contended that the defendant had infringed their trademark.

The petitioners further stated that Sunfeast changed the packaging of its FarmLite 5-Seed Digestive biscuits that is deceptively similar to NutriChoice's packaging and the defendant is taking undue advantage of Britannia's goodwill and reputation.

The HC dismissed the contention of the petitioner that the defendant is taking advantage of the goodwill and stated that both ITC and Britannia were reputed and well-known brands, enjoying their own niche clientele. It agreed with the defendant's contention that the dissimilarity between rival marks in the present case could not be ignored.

The Court said that Section(s) 29(1) and 29(2) of the Trademark Act should be interpreted broadly that the points of dissimilarity between rival marks cannot be regarded as irrelevant and it should not be ignored.

The Court stated that "The perception, whether in the case of infringement or passing off, is to be that of a person of average intelligence and imperfect recollection not of an idiot, or an amnesiac. The average human mind has not been particularly conditioned to observe only similarities, and overlook dissimilarities."

It added, "If the packs of the plaintiff and the defendant's biscuits are stored side by side, then, unless the customer is situated at so great a distance that he can see only the colors of the packs and not the distinctive features thereof, he is unlikely to be confused between the two."

The Court further pointed out the fact that the defendant's logo and the plaintiffs' are totally different and visible on the face of the rival packs. Hence, it would minimize the chances of a consumer mistakenly purchasing the wrong product.

The HC while dismissing the application held that there was no likelihood of confusion, and it refused to pass any interim order of injunction regarding the packaging of Defendant's "VEDA DIGESTIVE" biscuits.