Sunfeast Digestive biscuits packaging not deceptively similar to Nutri Choice Digestive biscuits: Delhi High Court

The Delhi High Court on Monday opined that the packaging of ITC Ltd's “Sunfeast Farmlite 5-Seed Digestive” biscuits was prima facie not deceptively similar to that of Britannia's “Nutri Choice Digestive” biscuits (Britannia Industries vs ITC Ltd). .A single-judge Bench of Justice C Hari Shankar refused to pass any interim order of injunction. "I am unable to convince myself that the pack of the defendant is so similar to that of the plaintiff, as is likely to result in deception or confusion..The distinguishing features, in the present case, are, on the other hand, just too many. They more than counterbalance the similarities, and, prima facie, negate any possibility of confusion, much less deception," the Court said. .The Court stated that both ITC and Britannia were reputed and well-known brands, enjoying their own niche clientele. The order was passed in Britannia's (Plaintiff) trademark infringement and passing off suit to restrain ITC Ltd (Defendant) from manufacturing or selling the digestive biscuits in its present packing..As per the Plaintiff, the overall appearance of Defendant’s pack i.e. overall trade dress, colour combinations, colour scheme, arrangement of features, get-up and layout, was confusingly and deceptively similar to the pack of its product, in respect of which it has been granted registration by the Trademark Registry..The Defendant inter alia stated that there were many distinctive features on the pack so as to obviate any possibility of confusion or deception. .It was added that putting the brand name, "Hi Fiber” etc on the pack was a common industry practice..The Court agreed with the Defendant remarking that the dissimilarity between rival marks in the present case could not be ignored. ."The perception, whether in the case of infringement or passing off, is to be that of a person of average intelligence and imperfect recollection – not of an idiot, or an amnesiac. The average human mind has not been particularly conditioned to observe only similarities, and overlook dissimilarities..If the packs of the plaintiff and the defendants biscuits are stored side by side, then, unless the customer is situated at so great a distance that he can see only the colors of the packs, and not the distinctive features thereof, he is unlikely to be confused between the two," the Court stated. .The fact that Defendant's “SUNFEAST” logo and Plaintiff's “BRITANNIA” logo are clearly visible on the face of the rival packs would also minimize the possibility of a consumer mistakenly purchasing the wrong product, the Court added. .Holding that there was no likelihood of confusion, the Court, vide the same order, also refused to pass any interim order of injunction with respect to the box packaging of Defendant's “VEDA DIGESTIVE” biscuits..Senior Advocates Sudhir Chandra, Sandeep Sethi, Jayant Mehta along with advocates Sagar Chandra, Ishani Chandra, Shubhie Wahi appeared for the Plaintiff. .Senior Advocate Sajan Poovayya and advocates Saikrishna Rajagopal, Sudeep Chatterjee, Nupur Lamba, Pratibhanu Singh, Kiratraj Sadana appared for the Defendant. .[Read Judgment]