Trade dress relates to the visual or other appearance of a product that may withal include its packaging, combination of colours, textures, graphics, shape which could be registered and protected from being exploited by competitors in connection to their business and service. The purpose of trade dress protection is to protect consumers from such packaging or appearance of products that are designed to imitate other products. It is further intended to prevent a consumer from buying one product under the pretext that it is another. In the Indian Trade Marks Act, a trademark in itself means a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and also includes shape of goods, packaging as well as combination of colours. The Act provides protection to all such marks which are distinguishable.

In the recent turnover of events, Delhi High Court in the case of ITC Ltd. vs Britannia Industries Ltd passed an order restraining the well acclaimed Britannia Industries Ltd from using the wrapper of its ‘NutriChoice Digestive Zero’ biscuits launched recently owing to packaging infringement. The Court stated that the packaging adopted was “deceptively similar” to ITC’s Sunfeast ‘Farmlite Digestive All Good’ biscuits.

ITC had claimed that Britannia’s biscuit brand replicated the former’s packaging of Sunfeast Farmlite Digestive All Good biscuit, which was launched in February 2016 while Britannia launched NutriChoice digestive biscuit only later in July 2016. It was further claimed that both are sold in a shade of blue and yellow packaging and hence when placed next to each other, they are indistinguishable to an unwary customer and can possibly lead to financial damages to ITC.

Britannia however refuted such claims against it stating that the packaging architecture of NutriChoice has not been influenced by any other brand and also filed a counter suit that is being heard by the Court for the use of yellow colour on digestive biscuits. While Britannia initially agreed to change the blue colour of its packaging, it refused to change the yellow colour stating that it was the dominant colour that it has been using with respect to digestive biscuits and it could not change the same.

The Delhi High Court ruled that the packaging adopted by Britannia was deceptively similar to that of ITC’s and hence ordered the former to adopt a distinctively different packaging. It was also observed that since Britannia has over 66% market share and was leading in the market of digestive biscuits category, it has the ability to swing ITC’s customers away by way of its deceptive packaging. Therefore, taking into account ITC’s arguments that Britannia’s product entered the market only two months ago, the High Court ordered that “Since it is just about two months since Britannia has introduced its variant with the impugned packaging, it is likely to suffer a far less damage if the injunction were to be granted when compared to the damage that ITC is likely to suffer if it is not granted. Without such interim protection, ITC is likely to suffer irreparable hardship since the loss of market share cannot adequately be compensated later.” Justice S Muralidhar further in the interim order granted in favour of ITC stated that Britannia would be granted four weeks to phase out all its existing stocks and maintain accounts.

However, Britannia took a step forward in the dispute and challenged the decision of the single judge’s order before a two-judge bench of the Delhi High Court. Britannia submitted that the order passed against it was erroneous as the single judge did not consider the fact that their packaging was different from that of ITC’s. The Delhi High Court however refrained from passing and interim order in favour of Britannia and the plea was dismissed.

A trade dress can be claimed when it makes the product identifiable to the consumer. When as such the product is identified by the consumer, a brand value is built. This implies that the trade dress has an important role in creating a brand value for the product making protection of trade dress very important. In the light of the recent events in the above case, it can be concluded that the Indian law provides protection to the concept of trade dress and thereby judicial remedies are made available to those who incur loss by exploitation of trade dress.

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