Britannia Industries received a shot in the arm with the Delhi High Court on Friday allowing it to manufacture and sell its digestive biscuit NutriChoice Zero. Cigarette-to-FMCG major ITC and Britannia are involved in a brand war case in which the former claimed that Britannia’s NutriChoice Zero digestive biscuit brand had copied the packaging of its Sunfeast Farmlite Digestive All Good biscuit. A division bench headed by Justice Badar Durrez Ahmed set aside the single judge’s September last year’s order that not only restrained the Wadia Group company from selling its digestive biscuits but also asked it to phase out its existing stocks by October.
“We are of the view that ITC is not entitled to the injunction. The single judges’ order restraining Britannia from selling its digestive biscuits is set aside,” the DB said, adding that the “colour blue could not be allowed to be monopolised”. Products of both Britannia and ITC were sold in blue and yellow packaging during the course of the case, but ITC told the court that Britannia had now changed its colour scheme. Britannia had contended that in a case of passing off, even if the get-up/colour scheme was similar but the origin was indicated through the use of a distinctive trademark such as Britannia, it would not amount to deception.
The Wadia group firm had claimed that it has a right to use yellow in its packaging as the dominant colour was being used by it for packaging variants of its digestive biscuits. It further pointed out that it was the market leader in digestive biscuits with a 66% share as against ITC’s share of 1.8%. ITC had got a restraint order from the single judge on the grounds that Britannia was copying its biscuit packaging. It had alleged copying of ‘trade dress and colour combination of its Sunfeast Farmlite Digestive ALL GOOD’ biscuit packages by Britannia’s Nutrichoice Digestive Zero biscuit packages. ITC in its petition has sought damages for infringement of trademark and goodwill, and to withdraw the Britannia product in the current packaging. In the R26,000 crore organised biscuit market, the digestives segment is estimated at around R500 crore. While British firm United Biscuits’ McVities dominates the category, Britannia is among the leading players.