The Biscuit Battle: All that happened in the Delhi HC in ITC v Britannia (Round 2)

The Delhi High Court’s courtroom number three was the venue of an eventful hearing of Britannia’s appeal against an injunction granted in a passing off dispute between Britannia and ITC..The Division Bench of Badar Durrez Ahmed and Ashutosh Kumar JJ. was hearing the appeal against Justice Muralidhar’s order passed on Monday [pdf], which restrained Britannia from using the current packaging for its’ Nutri Choice biscuits. This packaging, it was claimed by ITC, was very similar to the one used by ITC for its’ Sunfeast Farmlite Digestive biscuits..Before the Division Bench, Britannia was represented by senior counsel Sudhir Chandra and Aryama Sundaram. Chandra argued that the essential elements required for passing off were not met, and that it was Britannia who was market leader..“Delhi has a much more aggressive Bar and rightly so.” – Senior Advocate Aryama Sundaram.On the other side, ITC was represented by senior counsel Rajiv Nayar and Pratibha Singh. The two had a tough time, with continuous questions from the Bench, and even interruptions from the other side..Nayar, on being interrupted by Sundaram during the course of his arguments, told him sternly,.“Mr. Sundaram, I did not interject you when you were arguing all the wrong facts. Please give me the indulgence to argue my part. Whether wrong or right. If I’m interjected like this, I’m going to have to be very harsh.”.That was just the beginning..To prove his case, Nayar lined up ITC’s and Britannia’s biscuits in a suitcase, held it up hear the podium and asked Justice Ahmed to identify which was which..The bench appears to have come to the conclusion that there was little chance of confusing one of the packagings for the other. Remarked Justice Ahmed,.“My learned co-judge just asked me, ‘Are you getting confused looking at the two packets?’ I said ‘No I’m not’ and he replied ‘Bas phir khatam!’ (then it’s done).”.At one point Justice Ahmed observed that both parties were trying to claim monopoly over the usage of a colour in their packaging; ITC had a problem with Britannia’s blue and Britannia had a problem with ITC’s yellow. Addressing ITC’s counsel, the judge said,.“You change your yellow and let them change their blue and then matter can then be sorted.”.Nayar, though, insisted that the argument was not that the colour blue could only be used by ITC. Rather, the company was concerned with the colour combination that Britannia started using that confused buyers..To this Justice Ahmed sarcastically replied,.“Do one thing, remove everything else from your packet except for the blue and yellow colours. No brand name. No biscuits’ name. Nothing. Only sell a yellow and blue packet. You’ll become so distinctive that everyone will know!”.The bench concluded the day’s proceedings by refusing to grant a stay on the single bench’s order. At the same time, the court informed ITC’s counsel that the prima facie opinion was against them. However, the bench was trying to keep an open mind and would be hearing further arguments on September 14.