Delhi HC allows Britannia to sell digestive biscuits in its brand war with ITC

Delhi high court overrules ITC, allowing Britannia to manufacture and sell its digestive biscuit NutriChoice Zero


ITC and Britannia were involved in a passing off case in which ITC claimed that Britannia’s NutriChoice Zero digestive biscuit brand had copied the packaging of ITC’s Sunfeast Farmlite Digestive All Good biscuit. Photo: Priyanka Parashar/Mint
ITC and Britannia were involved in a passing off case in which ITC claimed that Britannia’s NutriChoice Zero digestive biscuit brand had copied the packaging of ITC’s Sunfeast Farmlite Digestive All Good biscuit. Photo: Priyanka Parashar/Mint

New Delhi: The Delhi high court on Friday set aside the operation of an injunction order against Britannia Industries Ltd, allowing the company to produce and sell its NutriChoice Zero brand of digestive biscuits.

The injunction had been granted on a petition by ITC Ltd that claimed the packaging of NutriChoice Zero was a copy of its Sunfeast Farmlite Digestive All Good biscuits.

The products of both companies were sold in blue and yellow packaging during the course of the case, but ITC informed the court that Britannia had now changed the colour scheme for its biscuit packaging. It has adopted a new yellow and purple packaging for its digestive biscuits.

“We are of the view that ITC is not entitled to the injunction. The single judge’s order restraining Britannia from selling its digestive biscuits is set aside,” said justice Badar Durrez Ahmed. He added that the “colour blue could not be allowed to be monopolized.”

The main point for consideration was whether or not the combination of yellow and blue used by ITC had become so identifiable with its biscuits that its use by others such as Britannia could be seen as an attempt to deceive the consumer. “ITC could not claim exclusivity over the colour combination when it has been in use for a short span of time.”, the order held. The combination was in use by ITC since May 2016.

It was held that ITC’s use of the colour combination could not be seen to have gained enough visibility as to prevent competitors from using it.

Although Britannia has adopted a new colour scheme, ITC may consider bringing an appeal against the order.

“ITC will consider filing an appeal after reviewing the order, passed by the court. We, however, understand that Britannia has already withdrawn their label against which ITC filed the suit,” an ITC spokesperson said.

Britannia had contended that even if the colour scheme was similar, if the origin was indicated through the use of a distinctive trademark such as Britannia, it would not amount to deception.

Claiming that Britannia had the right to use yellow in its packaging, the company’s counsel Aryama Sundaram had argued, “Yellow has been common to our trade of digestive biscuits since 2008 and it is coupled with blue for sugar free biscuits as the colour blue is associated with World Diabetes Day.”

“We are pleased with today’s order of the court that sets aside the earlier injunction order on the issue. The order is an endorsement of our conviction that the packaging architecture for NutriChoice has been built on a robust strategy, backed by strong portfolio packaging rationale and consumer logic. Our next course of action, basis the courts verdict, will be decided soon,” Britannia said in a statement.

On 6 September, justice S. Muralidhar had restrained Britannia from manufacturing NutriChoice Zero, and asked the company to phase out its existing stock in the market within four weeks.

Britannia had initially agreed to change the blue colour in its packaging but refused to drop yellow. It told the court that yellow was the dominant colour that it had been using for packaging variants of its digestive biscuits and could not consider changing that.

The company, however, later retracted its offer to change the blue colour and brought a counter-suit against ITC on 1 September for its use of yellow on its packaging of digestive biscuits.

Britannia replied and pointed out that it was the market leader in digestive biscuits with a 66% share as against ITC’s 1.8%.

Deepti Govind in Bengaluru contributed to this story.

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