Britannia moves division bench of Delhi HC against order restraining sale of NutriChoice Zero

Britannia Industries argued before a two-judge bench of the high court here against an order this Tuesday from a single judge, restraining the sale of its NutriChoice Digestive Zero biscuit in the present blue and yellow wrapper.

The injunction came on a suit from rival ITC, alleging breach of copyright. The allegation was that Britannia had copied the colour combination of the packaging of its digestive line, Sunfeast Farmlite Digestive All Good.

In the Britannia appeal before the bench of judges Badar Durrez Ahmed and Ashutosh Kumar, it said it was already incurring commercial losses due to the earlier order, as manufacturing of the biscuit had stopped.

"The judgment is erroneous. This injunction should be kept in abeyance, as it is affecting our business," said Sudhir Chandra, one of the counsels representing Britannia.

In response, lawyers Rajiv Nayar and Sandeep Sethi for ITC claimed the Britannia variant had copied the colour blue and other details of the packaging in question.

Britannia's counsels denied this, stating that as a market leader in the biscuit category (66 per cent share), the company did not need to copy the packaging of a new entrant. "You will win or lose on the quality of your product and not on its get-up or packaging," said Chandra.

According to the advocates, yellow was a characteristic colour in their packaging and the blue represented their sugar-free variants. They also highlighted other differences between the two products, including the presence of the NutriChoice logo.

After hearing both parties, the judges remarked, "You cannot say you have the proprietary right on any colour. Both (ITC and Britannia) of you are trying to appropriate a colour which you cannot."

At the end of the day's proceedings, C A Sundaram, the other counsel representing Britannia, urged the court to stay the impugned order. The bench would not and listed the matter for final adjudication on the coming Thursday.

The single judge had restrained the packaging of Britannia's NutriChoice Zero, after holding that the basic requirements of passing off had been satisfied and the wrapper used by Britannia was 'deceptively similar' to the ITC variant.

The order had directed Britannia to phase out its NutriChoice Zero stock in the present form within four weeks and maintain accounts of all sales since introduction in the market. The current NutriChoice Zero packaging had been launched in the market in June, months after ITC started selling their own Sunfeast Farmlite Digestive line.

The single judge has allowed Britannia to use its international packaging for the NutriChoice Zero biscuit or use the yellow colour along with a different shade (apart from any type of blue), to make its packaging distinctly different to the ITC product for future sales after the period allowed.