A petition filed by Kraft in the Delhi High Court alleges that the Bangalore based manufacturer’s Treat-O biscuit copied its well known cream-filled sandwich biscuits using recognised characteristics of its Oreo cookies such as their florets and inner rings.
The US confectionery and food giant also accuses Britannia of duplicating the Oreo brand name with the O in its title and the Illinois-headquartered firm has requested the High Court to restrain the Indian firm from manufacturing, selling, marketing or advertising any product with any distinctive feature of Oreo cookies.
Kraft, in its petition, has further submitted that `Oreo' was registered in India in 1991 and has been imported into and sold in the country since then. It is suing the Indian biscuit producer for damages.
Britannia Industries must file reply by 25 January, the next date of hearing on the case.
Brand power
In fiercely competitive times, the brand value - the power of the brand in the mind of the consumer - can bring much-needed leverage in the marketplace, as well as propping up shareholder value.
But the onus is on the food and drink manufacturer to show that the public perceive that the shape of its bottle or its food functions as a ‘badge of origin’ for the brand in order to satisfy valid trademark requirements.
Trademark tangles
There have been notable disputes over shape violation in recent years involving food companies. In July 2009, Mars lost its battle in the European Court of First Instance to regain trademark rights for the shape of its Bounty Bar.
However, Court ruled that the bar is “devoid of any distinctive character” that could justify the trademark.
It said that “an elongated shape is almost intrinsic to a chocolate bar and does not therefore significantly depart from the norm and customs of the relevant sector.”
Last September, General Mills lost its battle in the Israeli courts against two local manufacturers over allegations that they were copying the company’s well known cornucopia shaped corn snack – which is marketed under the Apropo brand in Israel.
The courts there ruled that was no likelihood of confusion in the public’s mind regarding the competing brands due to the distinctive packaging of the defendants' products.
Uniliever was also unsuccessful in its attempt to safeguard the wavy shape of its Viennetta ice-cream through trademark application, even though it submitted survey evidence to establish public perception of its multi-layered gateau’s shape as being unique.
In 2008, Cadbury was also the loser in an Australian court case over its claim to the copyright of the colour purple.
Cadbury took action to try to stop local rival Darrell Lea using purple for its packaging and advertising.