April 16, 2021 In Uncategorized


The Hon’ble #DelhiHighCourt passed a Judgment dated 05.04.2021 in the case of Britannia Industries Ltd. v. ITC Ltd. & Ors. {CS (COMM) 553/2020} and held that #packaging of M/s #ITC Ltd.’s Sunfeast Farmlite 5-Seed Digestive Biscuits is not deceptively similar to that of M/s #Britannia Industries Ltd.’s NutriChoice Digestive Biscuits and does not amount to #TrademarkInfringement.

In the present case, the Trademark Registry registered a trademark (Trademark) in favour of M/s Britannia Industries Ltd. (Plaintiff) under Class 30 of the Trade Mark Rules, 2017. The Plaintiff claimed that they have been using the packaging of “NutriChoice Digestive Biscuits” since 2014 and the same was registered as Trademark on 11-09-2020. According to the Plaintiff, M/s ITC Ltd. (Defendant) is manufacturing and selling “Sunfeast Farmlite 5-Seed Digestive Biscuits” in packaging w.e.f 28-09-2020, which is, deceptively similar to the packaging of “Nutri Choice Digestive Biscuits” of the Plaintiff Company. The Plaintiff alleged that adopting such confusingly similar package, is an act of infringement by the Defendant and such a deception would lead to encashing their goodwill and reputation. Furthermore, the Plaintiff also alleged that the Defendants were passing off their “Sunfeast Farmlite 5-Seed Digestive Biscuits” as those of the Plaintiff.

Accordingly, the Plaintiff sought an interim injunction to restrain the Defendants from manufacturing or selling biscuits in the packaging similar to that of the Plaintiff, pending disposal of the suit in the High Court of Delhi (Suit).

Taking into consideration, the arguments advanced by the Parties to the Suit, the Hon’ble High Court of Delhi (High Court) held that Section 29(1) and 29(2) of the Trademark Act, 1999 (the Act) have to be interpreted keeping in mind that the “points of dissimilarity between rival marks cannot be regarded as irrelevant”.

Placing reliance on the case of Kaviraj Pt. Durga Dutt Sharma v. Navaratna Pharmaceuticals Laboratories 5 AIR 1965 SC 980, Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142 amongst others, the High Court held as follows:


  • That “In assessing deceptive similarity, the class of the customer who would purchase the product is relevant. The look/appearance, and the sound, of the trade marks, as well as the nature of the goods, are all relevant considerations. Surrounding circumstances are also relevant.” The onus of proof is on the Plaintiff who alleges passing off.


  • That “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.”


  • According to the facts of the present case, the Court held that there were sufficient distinctive features between the NutriChoice and FarmLite packaging.

Hence, based on the aforesaid grounds, the High Court held that “If similarities can cause deception or confusion; dissimilarities, if sufficient, can also obviate any such possibility.”. Thus, the High Court dismissed the Petition.

Suchitra Upadhyay


The Indian Lawyer & Allied Services

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