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

New Delhi: In a win for Britannia Industries Ltd, the Delhi high court on Friday set aside an injunction order against it, allowing the company to manufacture and sell its digestive biscuit NutriChoice Zero.

ITC Ltd and Britannia were 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.

“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,” said justice Badar Durrez Ahmed. He added that the “colour blue could not be allowed to be monopolized”.

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.

The court was hearing Britannia’s appeal against a single-judge order directing the company to stop manufacturing its digestive biscuit NutriChoice Zero.

Earlier, the court had 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.

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.

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