New Delhi: Britannia Industries Ltd moved the Delhi high court on Friday in an appeal against a single judge order directing the company to stop manufacturing its digestive biscuit, NutriChoice Zero.

ITC and Britannia are involved in a case in which ITC claims that Britannia’s NutriChoice Zero digestive biscuit brand had copied the packaging of ITC’s Sunfeast Farmlite Digestive All Good biscuit. Both products are currently sold in blue and yellow packaging.

While refraining from setting aside the injunction order, the bench headed by Justice Badar Durrez Ahmed observed that the main question in the matter was whether the colour blue currently being used on ITC’s packaging could be appropriated by the company for its sole use.

Calling the injunction order erroneous, Britannia said, “The order against us is contrary to the fundamental principles of passing off. The two products are absolutely dissimilar."

Britannia further 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’s, it would not amount to deception.

Claiming that Britannia has a right to use yellow in its packaging, the company’s counsel, Aryama Sundaram, submitted, “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."

Britannia had initially agreed to change the blue colour in its packaging but had refused to change 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, which is also being heard by the court. Britannia further pointed out that it was the market leader in digestive biscuits with a 66% share as against ITC's share of 1.8%.

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

The case will be heard next on 15 September, when a final decision will be taken by the court.