A Division Bench of the Madras High Court on Wednesday, November 8, 2023 confirmed an order passed by a single judge of the High Court last month restraining ITC Limited from selling Sunfeast Mom’s Magic butter biscuits in a blue wrapper that was deceptively similar to the one used for several years by Britannia Industries Limited for Good Day Butter Cookies.
First Bench of Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy partly allowed an original side appeal filed by ITC Limited and permitted the appellant company to sell its butter biscuits in the blue wrappers only until the existing stock in such wrappers gets exhausted. They made it clear that the colour should be changed thereafter.
It was Justice P.T. Asha who had granted the interim injunction against ITC Limited after observing that consumers generally do not ‘spot six differences’ between two identical biscuit packets placed next to each other in a retail shop and therefore a competitor could not be allowed to use the same colour of wrapper as it had been used by the other manufacturer.
The judge had also stated that term ‘mark’ would include the shape of goods, packaging and combination of colours under the Trade Marks Act, 1999 and therefore ITC could not be allowed now to sell its butter biscuits in a blue colour wrapper that was being used by Britannia for the Good Day Butter Cookies since 1997.
