Packaged food major ITC Ltd. has recently launched its new product with the name ‘Sunfeast All-Rounder-a chatpata masala.’ It is a flavored thin potato biscuit which also is being widely advertised as ‘India’s Own’. This product was launched just weeks after Bangladesh-based Pran Foods’ Potata became an internet sensation and win everyone’s heart.
However, several questions have been raised by many on its identical product packaging. It comes in bright red color with the stacking of potato wafers that too in the same quadrant on the wrapper. This triggers concerns over trade dress infringement under the ambit of Intellectual Property Rights (IPR).
If anyone is unaware of the concept of Trade Dress, then it is a form of intellectual property dealing with the visual or sensual appearance or representation of a packaged product. It includes products’ packaging, shape, a combination of colors. It can also be registered and protected from infringement committed by competitors’ usage in relation to their own business and services. Indian Trademark Act, 1999 does not include any specific definition of trade dress. But due to several recent developments in the Intellectual Property Laws, a new amendment has come up which recognizes trade dress protection through a new definition with a different perspective of a trademark under Section 2 of the Trademark Act.
“The common law of passing off provides protection of trade dress. This case can amount to passing-off as to packaging. The packaging gets a cover under Copyright Act as to artistic work, and that need not be compulsorily registered in India. However, it may not be easy as the court may look into various other factors in addition to packaging such as for how long and how widely the product of the Bangladesh brand is available in India, and if the reputation of the other brand (Pran) is being impacted. Passing off is akin to trademark infringement, but applies to protect unregistered rights associated with a particular business, its goods or services,” said Ankur Raheja, an expert in IPR law
Law professionals also agree to the fact that similarity exists in this case. They added, “It is a theoretical argument as all ‘copying’ is not actionable under law. Also, high-profile trademark disputes, such as the litigation between Britannia and ITC over the packaging of digestive biscuits or even the Emami-HUL tussle over rights of brand name, often pit big businesses against one another. But when the defendant is a relatively smaller company it can be a life-or-death contest.”
FMCG major ITC Ltd has a stronger distribution muscle and with its new launch, it is well placed to disrupt India’s most loved and Rs 6,000 crore cracker biscuits category. When we talk about Pran, it is true that it is not as big as ITC Ltd, but it isn’t a small company either. It has its own factory in Agartala, Tripura and the brand Potata also has a registered trademark in India. However, the company also exports to over 140 countries and its export revenues alone amount nearly to Rs.100 crore.
However, ITC Ltd has dodged the query but refused to comment on the matter. Ahsan Khan Chowdhury, chairman and CEO of the Pran-RFL Group, the parent company which owns the brand, said, “It doesn’t have any copyright issues with ITC”.
Well, we all really trust ITC that Even if it is dragged to the courts, it will show up with full preparations to defend such claims, as this is another aspect of the business environment.
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