Recently Brittania company was earning the profits where all the companies are facing losses during the Covid-19 Pandemic period. Britannia company has broken all records and increased its revenue from 18% to 23%. The company’s growth is not limited to just financial returns, it has also won a major legal battle, albeit out of court.

Recently Brittania industries had filed an infringement suit against the Future Group Company claiming that Kishore Biyani Led company has copied the packaging of its several products of its popular biscuits brand. Britannia industries further stated that future consumer brand “Tasty Treat” have copied the packaging of its popular biscuit brand and is deceptively similar to the pack of Britannia biscuits packs. It was a case for Trademark infringement as well as for passing off. 

“Deceptively Similar” Marks means that the mark of both the parties are similar or look alike of an already registered Trademark in order to deceive or confuse the end consumers leading to unethical and wrongful loss in business and risk in the long created goodwill. The definition of Deceptive similar is discussed under section 2(h) of the Trademark Act, 1999 and according to the section it dec=scrbes “deceptive Similarity as:-

“A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that the other mark as to be likely to deceive or cause confusion.”

The concept of deceptive similarity has been widely recognised as a ground for trademark infringement under various trademark regimes. Under the Indian legal system also, deceptive similarity is considered as a ground for not granting the registration of the trademark to an applicant by the Registrar of Trademarks.

The ground for deceptive similarity is hugely known for the purposes of Trademark infringement under various Trademark regimes. 

However, the Trademark Act does not ascertain any criteria that can decide the ambit and scope of the phrase “deceptive similarity” hence leaving a vacuum in its wake. For cases related to Intellectual Properties, some criteria to test deceptive similarity, as have been recognised by the courts, can be:

  1. Deceptive similarity
  2. Principle of phonetic and visual similarity
  3. Goodwill, reputation, test of likelihood and so on.

In the above case parties agreed to settle the matter amicably out of the court and the future group was ready to compromise by compensating the plaintiffs. Future group further also agrees on changing the design of its packs.

For Trademark related query contact BIAT Legal LLP

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