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Legal Correspondent: Praveen Kumar
August 24, 2021: ITC Ltd., a famous packaged food company, recently launched a new product called ‘Sunfeast All-Rounder-a chatpata masala.' It is a flavoured thin potato biscuit that is also marketed as 'India's Own.'
The product packaging has been subjected to public concerns as the stacking of potato wafers in the bright red coloured wrapper is similar to recently launched Bangladesh-based Pran Foods' Potata. Sunfeast All-Rounder was introduced in the market few weeks after Bangladesh- based Pran Foods’ Potata went viral on the internet and won everyone's heart. Under the umbrella of Intellectual Property Rights (IPR), this raises questions regarding trade dress violation.
"Trade Dress," is a form of intellectual property that deals with a packaged product's visual or sensuous look or portrayal. It covers the product's packaging, shape, and colour combination. It can also be registered and safeguarded against infringement from competitors who employ their own products and services. The Indian Trademark Act, 1999 does not give a precise definition of Trade dress. However, due to recent developments in IP laws, a new amendment has been proposed that recognises trade dress protection through a new definition with a different perspective of a trademark under Section 2 of the Trademark Act.
Trade dress is protected under the common law of passing off. As far as packaging is concerned, this case may amount to passing-off. The packaging is protected by the Copyright Act as an artistic work, and it is not required to be registered in India. However, it may not be easy because the court may consider other factors in addition to packaging, such as how long and widely the Bangladesh brand's product is available in India, and whether the reputation of the other brand (Pran) is being harmed.
Law professionals agreeing the facts of the case said "It is a theoretical argument because all 'copying' is not actionable under law." Further, high-profile trademark disputes, such as the one between Britannia and ITC over the packaging of digestive biscuits or the Emami-HUL battle over brand name rights, quite often pit major corporations against one another. When the defendant is a smaller company, however, it can be a life-or-death situation.”
ITC Ltd has more distribution strength, and with its new launch, it is well positioned to disrupt India's most popular cracker biscuits sector, which is worth Rs 6,000 crore. Compared with ITC Ltd., Pran is not a big company, but it isn't a little business either. The Potata brand is a registered trademark in India, and it has its own factory in Agartala, Tripura. The company does, however, export to more than 140 countries, with export revenues surpassing Rs.100 crore.
ITC Ltd, on the other hand, has dodged but not answered the question. According to the chairman and CEO of the Pran-RFL Group, the company has no copyright issue with ITC.
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