Conscious attempt to copy another's packaging does not constitute passing off:HC

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New Delhi, Apr 5 (PTI) A conscious attempt by a company to copy the packaging of another's product, by itself 'does not constitute passing off or trademark infringement', the Delhi High Court said on Friday.

The court further observed that unless a consumer is liable to get confused or deceived, no case of infringement or passing off can be said to exist based on the intentions of the company which copied the packaging.

'A conscious attempt at copying, however, by itself does not constitute either infringement or passing off. The matter has, in either case, to be examined from the point of view of the customer of average intelligence and imperfect recollection.

'Unless such a consumer is liable to get confused or deceived, howsoever questionable the intentions of the defendants may be, no case of infringement or passing off can be said to exist, Justice C Hari Shankar said.

The court's observation came while dismissing Brittania Industries' application seeking an interim injunction, restraining the defendants, -- ITC Ltd -- from manufacturing or selling biscuits in the packing under challenge.

Brittania's main lawsuit alleging trademark infringement and passing off by ITC is pending.

The court said it was 'not possible to arrive at a prima facie finding in favour of the plaintiff (Brittania) on the aspect of deceptive similarity, and, consequently, infringing or passing off'.

Passing off means when someone tries to misrepresent their goods as those of another.

Brittania, in its suit, was aggrieved by ITC Ltd manufacturing and selling 'Sunfeast Farmlite 5-Seed Digestive' biscuits in packing which was allegedly deceptively similar to the packaging of its 'Nutri Choice Digestive' biscuits.

It has claimed that by adopting such confusingly similar packing, ITC has infringed its registered trademark and was also passing off their biscuits as those of Brittania.

Declining to grant any interim relief to Brittania, the court said that while there were some points of similarity in the packaging of the two biscuits, there were also 'stark and apparent points of dissimilarity' which would impress upon the mind of a person with even average intelligence and imperfect recollection.

'The distinguishing features, in the present case, are, on the other hand, just too many. They more than counterbalance the similarities, and, prima facie, negate any possibility of confusion, much less deception,' the court said. PTI HMP RKS RKS