Britannia Industries Ltd, which has been restrained from using the packaging of its 'Nutri Choice Digestive Zero' biscuits in its present form, today told Delhi High Court that they were incurring "commercial loss" due to the injunction granted by a single judge.
The counsel appearing for Britannia, which has challenged the September 6 order of the single judge, told a bench of justices B D Ahmed and Ashutosh Kumar that their business was getting affected because of the order as manufacturing of this product has been stopped.
A single judge bench had restrained Britannia from using the wrapper of its 'Nutri Choice Digestive Zero' biscuits in its present form, saying it was "deceptively similar" to packaging of ITC's Sunfeast 'Farmlite Digestive All Good' biscuits.
Also Read
During the hearing, senior lawyers C A Sundaram and Sudhir Chandra, who appeared for Britannia, submitted that the order was "erroneous" as the single judge had not considered the fact that their packaging was different from that of ITC.
However, senior advocates Rajiv Nayar, Sandeep Sethi and Pratibha M Singh, representing ITC, countered the submissions claiming that they have "adopted" their packaging and even lines on the packs were "replicated" by them.
Britannia, while refuting the allegations, had countered ITC's submissions, saying it did not need to adopt anyone's packaging, being the market leader.
The bench, which has fixed the matter for final disposal on September 15, said "You will win or lose on the quality of your product and not on its get-up or packaging."
At the fag end of the hearing when Sundaram urged the court to grant a stay on the operation of the single judge order, the division bench refrained itself from giving any interim order and said it would dispose of the matter on the next date of hearing.
The single judge had granted four weeks to Britannia to phase out the existing stocks of 'Nutri Choice Zero Digestive' biscuits with the present packaging.
The order had come on a plea filed by ITC Ltd seeking to restrain Britannia from violating its rights in packaging/ trade dress of 'Sunfeast Farmlite Digestive-All Good' biscuits by allegedly using a deceptively and confusingly similar trade dress for 'Nutri Choice Digestive Zero' biscuits.
Advancing the arguments today, Britannia's counsel told
the bench "this (Nutri Choice Digestive Zero biscuit) is a hot selling item and I have stopped its production. It is a commercial loss to us. I cannot be asked to stop selling this item. Yellow has been our standard colour since 2008."
"On the packing, I have clearly and boldly said that I am Britannia. The judgement passed by the single judge is erroneous. This injunction should be kept in abeyance as it is affecting our business," they said.
"For us, it is a day to day loss. Manufacturing of this product has stopped. If I am not selling the product, I cannot be able to quantify my loss," the lawyer said.
When ITC's counsel said the colour combination used by Britannia was similar to the colours used by them, the bench said, "You cannot appropriate a colour or combination of a colour."
"Both (Britannia and ITC) of you are trying to appropriate a colour which you both cannot," the bench said, adding, "Do you have a monopoly as far as colour is concerned. You cannot say you have the propriety right on any colour."
The single judge had asked Britannia to adopt a "distinctively different" packaging from the one currently used by ITC for its biscuit as such "deception" could confuse the consumers.
The single judge had said it would be open to Britannia to adopt the packaging it uses for the product internationally or, while retaining the yellow colour, it could substitute the blue colour in the packaging with any other distinctive colour other than variants of blue.
