A division bench of the Delhi High Court recently overturned a single judge order restricting Britannia Industries Limited from using the colour blue in their packaging of NutriChoice Zero digestive biscuits. The September 6, 2016 single judge order had come on the backdrop of a passing off and copyright infringement suit filed by ITC, alleging that Britannia had copied its blue and yellow packaging from the wrapper of ITC’s own digestive line Sunfeast Farmlite ALL GOOD biscuits. The order by Justice Badar Durrez Ahmed and Ashutosh Kumar reversed this finding on an appeal made by Britannia, and took a stand that the single judge has erred in his conclusion. The bench held that a passing off action on a product required three components to be successful – goodwill and reputation of the original merchandise, possibility of deception and misrepresentation through the sale of the other item and the likelihood of damage to the aggrieved seller – none of which had been made out to the satisfaction of the appellate court. www.britannia.co.in Britannia’s blue and yellow NutriChoice Zero packaging had been launched in the market in June 2016, only days after ITC started selling their own Sunfeast Farmlite Digestive line. “It is only when it is established, may be even prima facie, that the colour combination has become distinctive of a person’s product that an order may be made in his favour. We feel that the present is not such a case,” the judgment continued to say. The court said that ITC had no monopoly on the colour blue.