The Delhi High Court Division Bench of Badar Durrez Ahmed and Ashutosh Kumar, JJ. today set aside the single judge injunction order against Britannia, allowing it to manufacture and sell its Nutri Choice Zero biscuits..ITC and Britannia have been involved in a biscuit packaging battle, wherein ITC had filed an infringement suit against Britannia alleging that they had copied the packaging of ITC’s Sunfeast Farmlite Digestive biscuits..The Bench was hearing an appeal filed by Britannia against Justice Muralidhar’s order passed in September last year, which restrained Britannia from using the combination of yellow and blue on its packaging for its Nutri Choice biscuits. This packaging, it was claimed by ITC, was very similar to the one used by ITC for its Sunfeast Farmlite Digestive biscuits..According to Justice Muralidhar’s order, Britannia was restrained from using the colour blue in their packaging but were permitted to retain the colour yellow. The division bench made this observation and stated,.“The entire controversy in the present appeal centers around the use of blue and/or its variants in the packaging. It is, therefore, clear that in case the appellant / Britannia uses the same packaging, but substitutes the blue with any other colour, which is not a variant of blue, then there would be no case for passing off. .It further follows that all other elements of the packaging other than the combination of yellow with blue do not, at this prima facie stage, make out a case of passing off vis-à-vis the trade dress/get-up.”.Britannia was represented by senior counsel Sudhir Chandra and Aryama Sundaram. Chandra argued that the essential elements required for passing off were not met and that it was Britannia who was market leader..On the other side, ITC was represented by senior counsel Rajiv Nayyar and Prathiba M. Singh, who had claimed distinctiveness on the colour combination of blue and yellow used in their packaging..The Bench set aside the injunction stating,.“In our opinion, ITC cannot be entitled to an injunction and cannot claim monopoly over the colour blue.”.In the judgment the bench observed that passing off was a common law tort and each case of passing off depended on its own facts. Discussing the law of passing off, the bench stated,.“It is evident that a passing off action has to be examined from the standpoint of three factors: (1) goodwill and reputation; (2) misrepresentation/possibility of deception; and (3) likelihood of damage. .We must also note that goodwill and reputation do not refer to the same thing, though, there could be some degree of overlap. There may be a reputation and yet there may not exist any goodwill. .As an example, a particular mark may have a reputation worldwide. But, there may be no sales under that mark in a particular territory, say, India. Thus, although the mark would have a reputation worldwide, including India, it would not have a goodwill attached to it in India. It is not just the reputation, but the goodwill which constitutes property inasmuch as it represents a link between the business and the customer.”.Dismissing the arguments made by ITC, the bench observed that exclusivity claimed vis-a-vis a get-up and particularly a colour combination stands on a different footing from a trademark or trade name because colours and colour combinations are not inherently distinctive..Interestingly, Britannia had already changed the colour combination used on their packaging before the judgment was pronounced. The Bench, however, seemed unconvinced by the arguments of the ITC counsel..During the course of the arguments, Justice Ahmed had informed ITC that the prima facie opinion was against them. Surely, the setting aside of the injunction today would seem difficult for the company to “digest”..Read the full judgment here.