Passing off depends on the goodwill and reputation of the trade dress, and the claimant must establish that the trade dress has become distinctive of its goods to the exclusion of others. Colors and color combinations are not inherently distinctive, making it difficult to claim exclusivity over them, especially when in use for a short while.

BADAR DURREZ AHMED, J.

1. This appeal is directed against the order passed by a learned single Judge of this court on 06.09.2016 in IA No.10139/2016 which was an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (hereinafter referred as ‘CPC’). The said application was filed by the respondent/plaintiff (ITC) in its suit being CS (Comm) 1128/2016.

2. ITC had filed the said suit seeking an injunction restraining the appellant/defendant (Britannia Industries Limited) from violating its purported rights in the packaging/trade dress of its product “Sunfeast Farmlite Digestive – All Good” biscuit by allegedly using a deceptively and confusingly similar trade dress for its “Nutri Choice Digestive Zero” biscuit. An injunction was sought for restraining Britannia from, inter alia, passing off ITC’s alleged rights in the trade dress/packaging/label and dilution of the mark etc.

3. The learned single Judge has, by virtue of the impugned order, granted an interim injunction against Britannia and in favour of ITC in the following manner:-

“44. An interim injunction is, accordingly, issued restraining Britannia from using the impugned packaging get-up/wrapper for its Nutri Choice Digestive Zero biscuits in the present form during the pendency of this suit. It will however be open to Britannia to adopt the packaging it uses for the product internationally or while retaining the yellow colour, substitute the blue colour in the impugned packaging with any other distinctive colour other than variants of blue. In sum, it can adopt any packaging which is distinctively different from the packaging that is currently used by ITC for its Sunfeast Farmlite Digestive All Good biscuits.

45. The Court grants Britannia four weeks' time to phase out the existing stocks of Nutri Choice Zero Digestive biscuits with the impugned packaging. Britannia will maintain true accounts of its sales of Nutri Choice Zero Digestive biscuits with the impugned packaging from its launch till the date of discontinuance in terms of this order.”

4. Both the products are packaged solely in “pillow packages”. The packaging of ITC’s “Sunfeast Farmlite Digestive – ALL GOOD” Biscuit, which was allegedly launched in February 2016, is as under:-

xxx xxx

5. Britannia, evidently launched its product – “Nutri Choice Digestive Zero” biscuit – in July 2016. The packaging of Britannia product was as under:-

xxx xxx

6. Before we proceed further, it would also be pertinent to note that Britannia has been using a different box type packaging for the same biscuit in the international market. The packaging for the same in the international market is as under:-

xxx xxx

7. It is also relevant to point out that Britannia has been a market leader insofar as biscuits are concerned. Britannia Digestive biscuits are being sold under three different variants. One variant is the “Nutri Choice Hi Fibre Digestive” biscuit. The other variant is the “Nutri Choice Digestive 5 Grain” biscuit and the third variant is the one in issue, that is, the “Nutri Choice Digestive Zero” biscuit. The three variants were packaged as under:-

Sl. No.	Product	Variant	Colour Scheme	Used Since
1.	Nutrichoice Digestive	Hi-Fibre	Yellow+Red	October, 2014
2.	Nutrichoice Degestives	5 Grain	Yellow+Green	October, 2014
3.	Nutrichoice Degestive	Zero	Yellow+Blue	2016

8. From the operative portion of the interim injunction order, which has been extracted above, it is evident that Britannia has been restrained from using the colour blue in the packaging for the ‘Digestive Zero’ variant of biscuits, while it has been permitted to retain the colour – yellow. In other words, the entire controversy in the present appeal centres around the use of blue and/or its variants in the packaging. It is, therefore, clear that in case the appellant/Britannia uses the sa