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Britannia moves Delhi HC bench against curb on sale of NutriChoice Zero

Sayan Ghosal / New Delhi 09 Sep 16 | 08:37 PM

Britannia Industries Ltd moved a division bench of the Delhi High Court against a September 6, single-judge order, restraining the sale of its NutriChoice Zero digestive biscuit in its present blue and yellow wrapper.

The order injuncting Britannia arose out of a passing off and copyright infringement suit filed by ITC Ltd, alleging that Britannia had copied the colour combination of the packaging of their own digestive line, Sunfeast Farmlite ALL GOOD biscuits.

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In the appeal before the bench of Justices Badar Durraz Ahmed and Ashutosh Kumar, Britannia claimed that it was already incurring commercial losses due to the passage of the single judge order, as manufacturing of the biscuit had stopped as a result.

“The judgment passed by the single judge is erroneous. This injunction should be kept in abeyance as it is affecting our business," said senior advocate Sudhir Chandra, one of the counsels representing Britannia.

In response, senior advocates Rajiv Nayar and Sandeep Sethi, appearing for ITC, claimed the Britannia variant had copied the colour blue, as well as other intricate details of the packaging in question.

Britannia’s counsels refuted the ITC submissions by stating that as a market leader in the biscuit category (with around 66 per cent market share), the company did not need to copy the packaging of a new entrant.

"You will win or lose on the quality of your product and not on its get-up or packaging," said Chandra.

According to the senior advocates, yellow was a characteristic colour in their packaging and the blue represented their sugar free variants. They also highlighted other differences between the two products, including the presence of the NutriChoice logo.

After hearing the submissions made by both the parties, the bench remarked, “You cannot say you have the propriety right on any colour. Both (ITC and Britannia) of you are trying to appropriate a colour which you cannot."

At the end of the day’s proceedings, senior advocate C A Sundaram, the other counsel representing Britannia, urged the court to stay the impugned single judge order. The bench though, refused to grant Sundaram’s request at the present stage and has listed the matter for final adjudication on September 15 instead.

The single judge had earlier restrained the packaging of Britannia’s NutriChoice Zero, after holding that the basic requirements of passing off had been satisfied and that the wrapper used by Britannia was ‘deceptively similar’ to the ITC variant.

The order had directed Britannia to phase out its NutriChoice Zero stock in the present form within four weeks and maintain accounts of all sales since its introduction in the market. The current NutriChoice Zero packaging had been launched in the market in June this year, just months after ITC started selling their own Sunfeast Farmlite digestive line.

The single judge has allowed Britannia to use its international packaging for the NutriChoice Zero biscuit or use the yellow colour along with a different shade (apart from any type of blue) to make its packaging distinctly different to the ITC product for future sales after the period allowed.

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