Britannia Drags ITC To Delhi High Court, Files Counter Suit
Taking the biscuit dispute a step forward, Britannia Industries Ltd. on Thursday challenged the interim injunction by the Delhi High Court restricting the company from using the same packaging design for its digestive biscuits as ITC Ltd.
A single judge of the Delhi High Court on September 6 restrained Britannia from using similar packaging as ITC for its digestive biscuits. In a setback to Britannia, the high court granted an interim injunction against the packaging used by the company following a plea filed by ITC.
Britannia challenged the single judge’s order before a two-judge bench and the court will consider the biscuit maker’s case on Friday, September 9. Britannia is seeking to get the interim injunction lifted. The high court on September 6 had further directed the company to phase out its existing stock in four weeks.
An interim injunction is, accordingly, issued restraining Britannia from using the impugned packaging get-up/wrapper for its Nutri Choice Digestive Zero biscuits in the present form during the pendency of this suit. It will however be open to Britannia to adopt the packaging it uses for the product internationally or while retaining the yellow colour, substitute the blue colour in the impugned packaging with any other distinctive colour other than variants of blue. In sum, it can adopt any packaging which is distinctively different from the packaging that is currently used by ITC for its Sunfeast Farmlite Digestive All Good biscuits.Delhi High Court’s September 6 order in ITC vs Britannia case
Justice S Muralidhar, while pronouncing the order in court, had said: “Have directed Britannia to phase out existing stock in four weeks. If there is any problem with respect to phasing out process the company can approach court.”
ITC, which sought damages for infringement of trademark and goodwill, had also asked the court to direct Britannia to withdraw the product. ITC alleged that Britannia’s Nutri Choice Digestive Zero brand has copied the colour packaging of its recently launched digestive biscuit, Sunfeast Farmlite Digestive All Good biscuit. ITC launched its product in February 2016 followed by Britannia’s launch of their product in the digestive segment in July 2016.
Taking into account ITC’s arguments that Britannia’s product is just two months old, the High Court order says, “Since it is just about two months since Britannia has introduced its variant with the impugned packaging, it is likely to suffer a far less damage if the injunction were to be granted when compared to the damage that ITC is likely to suffer if it is not granted. Without such interim protection, ITC is likely to suffer irreparable hardship since the loss of market share cannot adequately be compensated later.”
A market leader like Britannia can certainly eat into the market share of a relatively smaller player like ITC in the biscuit trade by adopting a deceptive variant of the latter’s get up and trade dress but the converse may not be true. The new entrant with a product that enjoys a growing popularity might require protection.Delhi High Court’s September 6 order in ITC vs Britannia case
ITC alleged that Britannia used similar yellow and blue colours and an identical description of their product. In earlier hearings, Justice Muralidhar had asked Britannia to consider an alternative colour combination for its packaging.
Britannia had refuted all allegations and informed the court that the company will file a counter suit against ITC for using the same colours as its products. Britannia’s counsel had argued that the company enjoys 66 percent market share in the digestive biscuits segment.