The Delhi High Court has recently observed that even if there is a concious attempt at copying, it will not constitute either infringement or passing off, unless it is examined from the point of view of the customer of average intelligence and imperfect recollection.
The bench noted that it is not possible to arrive at a prima facie finding in favour of the plaintiff on the aspect of deceptive similarity, and, consequently, infringing or passing off.
The Court opined that in designing the impugned pack of “VEDA DIGESTIVE” biscuits, the defendant may have made a conscious attempt to “copy” the plaintiff’s packing. A conscious attempt at copying, however, by itself does not constitute either infringement or passing off. The matter has, in either case, to be examined from the point of view of the customer of average intelligence and imperfect recollection. Unless such a consumer is liable to get confused or deceived, however questionable the intentions of the defendants may be, no case of infringement or passing off can be said to exist.
“Though the defendants’ packs in the present case are more similar in appearance to the plaintiff’s packs, vis-a-vis the position which obtained in CS (Comm) 553.2020, these added points of similarity in the present case are also, insufficient to render the pack of the defendants confusing or deceptively similar to that of the plaintiff”, said the Court.
The pack of the defendants prominently highlights the unique category to which the defendants’ biscuits belong. Biscuits containing these Ayurvedic ingredients are not often encountered in the market, and, therefore, a customer of average intelligence and imperfect recollection, who has earlier consumed the plaintiff’s “NUTRI CHOICE” biscuits, is extremely unlikely to confuse the defendant’s “VEDA DIGESTIVE”, biscuits containing five distinct Ayurvedic ingredients, prominently displayed on the pack, for the “NUTRI CHOICE”, biscuits of the plaintiff.
Even more than in the case of the defendants’ “5 SEED DIGESTIVE” biscuits forming subject matter of CS (COMM) 553/2020 are, therefore, the defendants’ “VEDA DIGESTIVE” biscuits, with these five Ayurvedic ingredients, a specie sui generis.
The HC cleared the Passing off has to be viewed from the perspective of the customer who wants to purchase the product.
High Court then framed questions as;
Is he, having earlier bought the product of the plaintiff, likely, on later coming across the product of the defendant, likely to confuse it as having been made by the plaintiff?
Are the packs so similar that the customer, of average intelligence and imperfect recollection may, on later coming across the defendants’ pack, associate it with the plaintiff?
It is observed by the Court that a prospective customer may come across the product to be purchased through one of three modes. He may either purchase it online, or pick it from the shelf, or be handed it by the shop assistant. Online, the two products are obviously totally different, and there is virtually no likelihood that the customer would confuse the products.
Even as displayed on the shelf, as in the case of the packs forming subject matter of CS (COMM) 553/2020, any customer, who is within viewing distance of the details of the packs, is unlikely to confuse them.
There is no reason to believe that a shop assistant, even moderately familiar with the difference in the plaintiffs and defendants’ products, will provide, to the customer who wants 5 grain digestive biscuits, the defendants’ product, containing the 5 Ayurvedic ingredients prominently displayed. Even if he does, it is not possible, prima facie, to believe that the customer would, on seeing the pack, link it with the plaintiff, or its “NUTRI CHOICE 5 GRAIN DIGESTIVE'' biscuits.
There is, on the other hand, every possibility of such a customer, who is not looking for biscuits containing Ayurvedic ingredients such as Ashwagandha, Tulsi, and the like, returning the defendants’ biscuits to the shop assistant. Not everyone can be presumed to be an aficionado of biscuits containing Ayurvedic herbs.
It is necessary to reiterate that the Court cannot, in a case such as this, gloss over the distinction between plain digestive biscuits vis-a-vis “5 grain”, “5 seed” or “Veda” digestive biscuits containing five Ayurvedic ingredients. Each is a distinct species, with distinct features, and markedly different, and unique, ingredients. These distinctive features stand prominently reflected on the packs. The addition of these distinct ingredients are clearly intended at conveying, to the public, the unique health features resulting as a consequence.
The Court cannot, therefore, readily presume the digestive biscuit consumer, even if of average intelligence and imperfect recollection, to be unaware of the difference between these categories of digestive biscuits.
It is trite, in law, that, while examining the aspect of deception or confusion, the Court has to identify the precise consumer-base. Digestive biscuit consumers constitute an entirely different category of consumers, from consumers of ordinary biscuits. Whether one applies the “likelihood to cause confusion” test in Section 29(2), or the “deception” test in Section 29(1), one has to examine the possibility of deception or confusion keeping this frank reality in mind.
The Court would be falling into serious error if it were to assume that digestive biscuit consumers are ignorant of the difference between ordinary, 5-grain, 5-seed and Ayurvedic digestive biscuits, or likely to confuse one for the other, on the basis of the rival packs. The fact that the registration held by the plaintiffs is in respect of biscuits per se, as an omnibus class, is entirely irrelevant in this context, once, keeping the purveyors of such biscuits in mind, no possibility of deception or confusion is found to exist.
Case Title: Britannia Industries vs ITC Ltd & Ors [CS(COMM) 553/2020]