Delhi High Court Rejects Britannia's Plea Of Trademark Infringement Against ITC'S Sunfeast Digestive Biscuits

A single judge bench of Justice C Hari Shankar of the Delhi High Court today dismissed a petition by Britannia Industries Ltd against ITC Ltd for alleged trademark infringement and passing off by ITC's Sunfeast Farmlite Digestive Biscuits, of Britannia's NutriChoice Digestive Biscuits.

zHolding that Sections 29(1) and 29(2) of the Trademark Act have to be interpreted keeping in mind that the "points of dissimilarity between rival marks cannot be regarded as irrelevant," or be ignored, the court said that ITC Sunfeast's FarmLite Digestive Biscuits were not deceptively similar so as to confuse them with Britannia's NutriChoice Digestive biscuits to a person of average intelligence and imperfect recollection.

The Court also held 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."

Highlighting that there were sufficient distinctive features between the NutriChoice and FarmLite, the court held that, "If similarities can cause deception or confusion, dissimilarities, if sufficient, can also obviate any such possibility," and further said that for the purposes of the Trademarks Act, the man of average intelligence and imperfect recollection cannot be treated, as being easily confused or deceived.

The brief facts of the case are that Britannia claimed that it had registered a trademark on the packaging of NutriChoice Digestive biscuits on Sep 11, 2020 and had been using the same since 2014, whereas Sunfeast used to have different packaging back then for its digestive biscuits.

However, Britannia claimed that subsequently, Sunfeast changed the packaging of its FarmLite 5-Seed Digestive biscuits w.e.f Sep 28, 2020, to be deceptively similar to NutriChoice's packaging with the intention of encashing Britannia's goodwill and reputation.

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