Trademark

YET ANOTHER TROUBLE FOR BRITANNIA


ET and other business dailies including Business Standard reported yet another trouble for Britannia. According to news reports, US based Kraft Foods sued Nusli Wadia-owned Britannia industries for trademark infringement of its popular “Oreo” cookies. For more about Oreo cookies see here.

The distinctive face of an Oreo cookie
In a suit filed in the Delhi High Court, Kraft claimed that Britannia’s recently-introduced “Treat-O” biscuit is a copy of its cream-filled sandwich cookies. According to Kraft, Britannia copied the specific design etchings such as florets and inner rings of “Oreo” cookies. It alleged that the brand name, “Treat-O”, with an emphasis on ‘O’, was inspired by “Oreo”. It is also reported that the US giant sought injunction for precluding Britannia from manufacturing, selling, marketing or advertising any product with any distinctive element of “Oreo” cookies. Assuming the veracity of the report, this is the second instance in four years where Britannia is involved in legal tussle with a multinational food company over trademark. [Its tussle with French food giant Danone is covered here ]. 
The tenability of the claim can be ascertained only after examining the package design and the style in which “Treat-O” has been written. Curiously, I could neither trace this product in the local market nor online including the official Britannia website! Thus, I am unable to independently verify the tenability of this claim. Assuming the similarity between the competing marks and applying the ratio in Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors., 2008 (38) PTC 185 (Del), Kraft will have to prove that the targeted audience is unable to discern the difference between the two marks. Prima facie, “Treat-O” and “Oreo” sound quite distinct to me. However, a conclusion cannot be drawn for the reasons stated above.

Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

6 comments.

  1. AvatarKarthik

    Kraft could have been better protected if they had sued for infringement of Design. However, it appears that they havnt applied for registration of the Design. As it appears consumers might not be deceived by the Trade Marks, since the marks are visually, phonetically and construction wise dissimilar

    Reply
  2. Avatarseema

    Please go to any mega store for food products and you will be able to see this prodcut that has just hit the market. It comes in brightdark blue packing and does seem similar to the OREO product. I had purchsed a few packs.

    Reply
  3. AvatarTejas

    Hi,I think even though produc is yet to be marketed,(for which I rely on author’s words)there is considerable advertisement on tv so definitely there involves an element of unlawful and unauthorised marketting.
    Keeping in mind the fact that Indian consumers have wide and huge access to overseas market this issue also assumes importance from infringement point of view.
    Even though names of biscuit are different there is gross copying of design,shape and colour which raises concern of copycat product so definitely this would be an interesting case to follow and study and probably an alarming call against such unfair practices.

    Reply
  4. AvatarAnonymous

    Dear Mathews:

    a) I tasted the Brittania product. Kraft has nothing to worry.. B’s product is nowhere NEAR OREO (taste).

    b) However, there is one product which not only is very close to design and biscuit colour too (in fact a better copy than B’s Treat-O) and is also much closer to Oreo in taste… this the Sunfeast Dark Fantasy (Vanilla flavoured)…
    JSD – as a lover of Oreo and a buyer of biscuits + with some knowledge of IP, I think ITC’ Sunfeast is in much deeper mess… Kraft should tackle them first.

    Regards,
    Freq. Anon.

    Reply

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