Britannia Industries Limited filed a Trademark Infringement Suit against ITC, accusing its Sunfeast Farmlite Digestive Biscuits of being an exact copy of Britannia's Nutri Choice Digestive Biscuits.
The said petition was dismissed by a single judge Bench of Justice C Hari Shankar
of the Delhi High Court on April 6, 2021. Britannia had registered a trademark on the packaging of NutriChoice Digestive biscuits on Sep 11, 2020. The same was being used by it since 2014. However, different packaging was used by Sunfeast then.
Following this, Britannia claimed change in Sunfeast’s FarmLite 5-Seed Digestive biscuits as on September 28, 2020 so as to be deceptively similar NutriChoice's packaging. It accused Sunfeast of taking advantage of its reputation and goodwill. While taking note of Sections 29(1) and 29(2) of the Trade Marks Act, 1999, the Court said that they must be interpreted so as to observe "points of dissimilarity between rival marks cannot be regarded as irrelevant." Along with this, the Court held that ITC Sunfeast's FarmLite Digestive Biscuits could not be stated as deceptively similar to Britannia's NutriChoice Digestive biscuits to the extent that one with average intelligence alongside imperfect recollection could get confused between the two. The Court also said:
"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.”
The Court highlighted that the biscuits of the two companies could be sufficiently differentiated and said that, "If similarities can cause deception or confusion, dissimilarities, if sufficient, can also obviate any such possibility.” It was further observed how a person of average intelligence and imperfect recollection cannot said to be easily confused.