Libertatem Magazine

The Battle of Biscuits: Delhi High Court

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Case Name: Britannia Industries Ltd. v. ITC Ltd. and Ors. 


The matter before the Delhi High Court was between two brands of biscuits having ‘deceptively similarly’ wrappings. This led to a case for trademark infringement and passing off. 


In September 2020, Plaintiff Britannia Industries Ltd. registered a trademark with the trademark registry regarding their ‘Biscuits, bread, buns, rolls, bakery products, coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee’ etc. Plaintiff was the manufacturer of ‘Nutri Choice digestive’ the packaging of the above-mentioned product employs the registered trademark. Plaintiff was aggrieved by the Defendants’ manufacture and sale of a product ‘Sunfeast Farmlite 5-seed Digestive’ biscuits in packing, which was according to Plaintiff, deceptively similar to his ‘Nutri Choice Digestive’ biscuits. Plaintiff alleged that the product of the Defendants’ carried a packaging that was deceptively similar to that of their product and had infringed the registered trademark of Plaintiff, and also that Defendants were passing off their product as that of Plaintiff. Plaintiff filed for an interim Injunction, seeking to restrain the manufacture and sale of Defendant’s product. 

Plaintiff’s Arguments

The Counsel for Plaintiff submitted that the overall dressing of Defendant’s product, including colour combinations, layout, and arrangement of features were deceptively similar to their product. Plaintiff’s Counsel pointed out that the trademark registry awarded to them applied to the category of ‘biscuits’ and therefore covered all categories of the product and so any use of any mark which was intended to create deception in the mind of a consumer would infringe the IPR rights of Plaintiff. The Counsel for Plaintiff relied upon Section 28 and 29 of the Trademarks Act. 

Counsel pointed out that normally ‘biscuits’ were stacked together and were of the same colour scheme, and both fell into the category of the digestive biscuits. The contents or ingredients of the products were immaterial. To provide backing for the arguments, he relied upon a judgment of the Supreme Court in Kaviraj Pandit Durga Dutt Sharma V. Navaratna Pharmaceutical Laboratories5, Parle Products (P) Ltd. v. J. P. & Co. Mysore. 

Defendants’ Arguments

The Counsel for Defendants submitted that several features differentiated Plaintiff’s product and their product in the market. These features made the two packagings quite dissimilar and excluded any possibility of confusion and/or deception. Pointing out the points of difference between the products, Counsel argued that various points of deception alleged by Plaintiff were merely common practices of the industry such as the practice of displaying seeds, raisins, and almonds on the packaging, etc. 

The Counsel argued that any person who was used to eating digestive biscuits and was a regular consumer of Plaintiff’s product, would not confuse the product with any other, and vice versa. which showed that the alleged infringement has caused no injury to Plaintiff implied or otherwise. 

Court’s Observations

After hearing the arguments for both parties, the Court observed that the definitive test in case of infringement or passing off is if the marks caused confusion or deception to a man of average intelligence and imperfect recollection and that the Court had to determine whether the alleged use of the mark was deceptive to the extent of similarity irrespective of any individual or differentiating features. The Court observed that while there were similar characteristics between the products of the two parties, there were also several apparent differences between the two, and these differences in the opinion of the Court could not confuse a man of average intelligence and imperfect recollection and in the eyes of the Court, the differentiating features outnumbered the similarities. 

The Court observed that the intent of the legislature in the wordings of the Trademarks Act could be seen through the conscious use of the words ‘deceptively similar’ and ‘identical’ which showed that mere deception or confusion with or without intent could not be readily assumed. At the same time, it would not deceive a man of average intelligence or imperfect recollection. As for the allegation of passing off, the Court observed that it would be highly unlikely for a consumer to ‘confuse’ one product with another as the average consumer of both these products would be a health-conscious person and would never mistakenly purchase a product they are not used to. Considering the above observations, the Court rejected the application. 

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