“It is only when it is established, may be even prima facie, that the colour combination has become distinctive of a person's product that an order may be made in his favour. We feel that present is not such a case. For the foregoing reasons, we are of the view that ITC was not entitled to an interim injunction and, therefore, the impugned order is set aside,” a division bench ruled on Friday.
The ruling paves way for Britannia to roll out the digestive biscuit brand in its original packaging and colour scheme. An ITC spokesperson said the company would consider filing an appeal after reviewing the order.
“We, however, understand that Britannia has already withdrawn their label against which ITC filed the suit,” the person said.
Britannia did not respond to an email seeking comments as of press time on Friday.
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ITC had filed a case against Britannia in August last year, alleging that the biscuit market leader's Nutri-Choice Digestive Zero brand had copied the packaging of ITC'sSunfeast Farmlite Digestive All Good biscuit. A single judge bench had then directed Britannia to withdraw the brand in its current packaging, saying it was deceptively similar to the packaging of ITC's product.
Britannia filed a counter suit challenging the order in September, contending that the colour blue was being used worldwide in relation to sugar-less or zero sugar. Britannia has been using similar packaging for other variants in its Digestive portfolio; yellow and red for Digestive Hi Fibre biscuits and yellow and green for Digestive 5 Grain biscuits, it argued.
A bench of Justices Badar Durrez Ahmed and Ahutosh Kumar has now ruled in favour of Britannia. Since the company has already been using yellow as a primary colour in combination with others for its earlier products, “it's natural evolution into a combination of yellow and blue is quite understandable”, the bench observed.
The previous ruling in favour of ITC had said that sales of `5 crore in five months and `14 crore spent on advertising was indicative of the growing reputation of ITC's product and deserved protection. Ahmed, however, on Friday said the focus ought to be on whether the packaging was exclusively and distinctively associated with ITC and said he believed that the same has not been established. ITC holds 1.8% of share in the Rs 26,000 crore biscuit market in the country while Britannia holds 66% share.
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Britannia NutriChoice has a dominant market share of around 70% in the premium health category. British firm United Biscuits’ McVities dominates the digestives segment, estimated at around Rs 500 crore.
