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5. The photographs depicting the manner of the products being displayed in the market place/stores when placed next to each other have been placed on record. It is pointed out that Britannia has been marketing and selling digestive biscuits under the mark „Nutri Choice‟ for the last several years. According to ITC, after the launch of its „Sunfeast Farmlite Digestive - All Good' biscuit with „No Added Sugar‟ and „No Maida‟, Britannia filed a complaint before the Advertising Standards Council of India („ASCI‟). After failing attempt to the said complaint, Britannia, in July 2016, introduced Nutri Choice Digestive Zero biscuit claiming „0% Added Sugar‟ and „0% Maida‟ in packaging which is nearly identical and/or deceptively similar to that of ITC‟s packaging.

15. The case of ITC is that Britannia was aware of ITC's packaging since February 2016 and chose not to enter the market till July 2016 with its competing product. It is pointed out that Britannia made no grievance in the first place about ITC's packaging since it first went with a complaint against ITC about this very product (and not its packaging) before the Advertising Standards Council of India (ASCI) and it was only after it was unsuccessful there it decided to launch the Nutri Choice Digestive Zero biscuit by imitating ITC's packaging for the Sunfeast Farmlite Digestive All Good biscuit. It is further pointed out that Britannia‟s „Nutri Choice Digestive Zero biscuit‟ has, in the packaging in small font, stated that "this biscuit contains sucralose not recommended for children". This would tarnish the image of ITC inasmuch of ITC products, including „Sunfeast Farmlite Digestive - All Good‟ biscuits as they are suitable for consumption including children and an unwary consumer is like to pick the Britannia‟s product thinking the same to the ITC‟s product. This would also dilute ITC's brand and harm its reputation since ITC's biscuit in fact has no added sugar or maida and is suitable for children and adults alike.

Submissions on behalf of Britannia

18. Mr. Sudhir Chandra for Britannia began by pointing out that Britannia is the market leader and had over 66% of the market share (in both volume and value) whereas ITC had only 1.8%. He pointed out that Britannia has been manufacturing and marketing the above range of Nutri choice Digestive biscuits with the primary/predominant colour of the product packaging below yellow along with a secondary colour to indicate the variant since 2008.

19. Mr. Chandra debunked ITC's submission that only after Britannia‟s complaint before ASCI was dismissed, it decided to introduce Nutri Choice Digestive Zero biscuits. It is pointed out that the complaint was rejected by ASCI by its order dated 12th July, 2016 whereas the date of manufacture of the Nutri Choice Digestive Zero biscuit as shown in the packaging placed on record by ITC itself is 30th June, 2016. It is pointed out that Britannia's nutri choice biscuits have been in the market since 2008. However, it was not disputed by Mr. Chandra that this particular variant viz., Nutri Choice Digestive Zero biscuit was introduced only in July 2016.

Rejoinder submissions of ITC

23. Replying to the above arguments, Mr. Rajiv Nayar, learned senior counsel for ITC, first pointed out that the lemon green that was contemplated by ITC as a possible colour on the packaging for Farmlite Digestive All Good biscuits was, in fact, only used at the planning stage. The product was never launched with that colour combination in the packaging. He pointed out that ITC was in the market with Farmlite Digestive All Good biscuits since February 2016 whereas Britannia entered with Nutri Choice Digestive Zero only in July 2016. Relying on the decision in Ishi Khosla v. Anil Aggarwal 2007 III AD (Del) 421, Mr. Nayar pointed out that reputation could be built, not necessarily over a large number of years, but even „overnight‟. The fact that since its launch in February 2016, ITC has been able to sell Rs. 5 crores worth of Farmlite Digestive All Good biscuits reflected its growing reputation. Further, the fact that Britannia chose to file a complaint to the ASCI and then in July 2016 introduced its own variant imitating ITC‟s packaging also showed that ITC was posing a good competition with the growing popularity of its product. He submitted that if indeed Britannia had a 66% market share, it should really not be worried about a competitor who had less than 3% market share. By trying to stymie healthy competition by imitating the packaging, Britannia was indulging in unfair trade practice.