Wednesday, January 5, 2011

Snippets: Kraft Foods Inc. Sues Britannia for Trademark and Copyright Infringement

In what promises to be a high-stakes dispute, US-based packaged  foods manufacturer, Kraft Foods Inc, has sued one of India’s most well-known packaged foods manufacturer, Britannia Industries, for copyright and trademark infringement.

According to the Economic Times, Kraft Foods has alleged that Britannia’s latest offering, 'Treat-O' biscuits, infringe Kraft’s trademark and copyright in its Oreo Cookies. Kraft has sought injunction to prevent Britannia from selling any product which incorporates “any distinctive element” of Oreo cookies.

ET reports that Kraft’s specific allegations are that Britannia’s Treat-O biscuits use the same trade dress as Oreo cookies. The trade dress here is the design etchings on Oreo biscuits, such as florets and inner rings. Also, apparently the ‘O’ in Treat-O is allegedly inspired from the ‘O’ in the Oreo.

Any further updates on the developments in the suit are welcome! We will keep our readers posted on the case.

I thank Rohan Coutinho for the scoop!


  1. well well.. for one oreos are amazing..

    As far as the case goes couple of issues come to my mind... will kraft be able to prove that the general consumer in india recognizes oreo as a premium kraft product (like apna neighbourhood kirane ki dukanwala)

    Also what abt the fact that britannia has used round busicuits with carvings holes etc in the past? I would like to see what Treat-O looks like... I mean Kraft wd have a case only if its an exact copy id guess

    What say sai?

  2. Hey Divs,
    Honestly, my first reaction was that the case plays into the hands of the activist "ALL IP IS EVIL!" brigade because the case involves IP applied to an edible commodity. Someone's gonna react in hyperboles, so in general, I am not sure if the case is good news for IP rights holders in India from a PR point of view.

    That said, I haven't had an opportunity to go through the facts of the case; media reports, particularly on IP matters, aren't reliable because they rarely make sense to themselves.

    But for now, I think, unless Britannia's biscuits are an exact replica of Kraft's proprietary designs, its gonna take some real hair-splitting analysis on Kraft's part to establish infringement.

    However, the question that comes to my mind is, shouldn't this have been a case of industrial designs? Because, from what I little I gathered from the ET report, the issue is about designs applied to biscuits. Why didn't Kraft apply for industrial designs, since it appears the designs are registrable as industrial designs? Don't food products fall within the purview of articles to which industrial designs can be applied? Guess we'll have to wait for the facts of the case to be revealed.


  3. Industrial designs have a time window which they need to be applied for at Designs wing.
    In this case, its quite possible that While Oreo may have been registered / applied as TM (which can be done at any point of time), design right was NOT applied for.

    So, if you are Kraft and see Brittania selling some thing close to Oreo, what can you do?
    You go behind "B" using classic Copyright infringement.

    Freq. Anon.

  4. True FA, then we may have a second round in the "Copyright v. Design" duel carried over from Microfibres v. Giridhar...


  5. During a midnight food raid at home I happened to bite into a biscuit, which, what appeared (considering the biscuits were in a container!)to me was- an oreo.. I did remember reading this post and thought i'd have a look at the trade dress. To my disbelief not only was the trade dress pretty identical, but the biscuit read as- 'Sunfeast' (ITC)[first thought: who were the defendant's in the Kraft suit again?]
    As a consumer I can safely say there definitely was a likelihood of confusion!
    ..on a quick google search, Treat-O does not have any semblance of the oreo I've eaten or we can see above! So I really don't know where Kraft is going with this suit.
    Seeing this case from another angle- it appears from one of the news articles that I read, that Brittania had dragged Danone over Tiger Biscuits. Meanwhile Danone had sold to Kraft, except in India. I don't really know what ensued afterwards between Danone and Britannia, because one of the reports also suggested that even though the Wadias had a 25% indirect stake in Danone, they had dragged the French company to courts twice over. Finally in '09 the company exited indian shores. Britannia's reputation with foreign food product companies appears to be rather suspect. I wonder if there is anything fishy here?
    If nothing else, one thing is for sure, I hope Kraft is reading the first half of this comment, because as a consumer I can safely say that in all likelihood it definitely passes the confusion test!
    Answering what Divs put forward as to- whether the 'general consumer' would be able to decipher the difference? I do believe that the law cannot protect indifferent buyers who do not buy on the basis of trademarks, as they are not affected by similar marks anyway. There are several factors that are analyzed including the price of the goods. The more expensive the services, the more discriminating the purchaser is likely to be, and likewise, a purchaser is likely to be harried and careless for less expensive items. Maybe the situate can be different for India- i'd like to leave it at that and see where this discussion takes us..

  6. That is indeed an interesting observation Aditya, but did you know that it is in FMCG goods (like biscuits) that branding is taken much more seriously than, say, goods where the profit margin's higher (because the quantum of sales is comparatively lesser)(?).

    Not just that, you'l find quite a few pepsodent loyalists just as you would find faithful users of colgate. Do coke and Pepsi differ very much in their prices? I dont think so, and yet there are quite a few who swear by Coke and quite a few who prefer Pepsi. So, I think branding isn't an entirely futile exercise in the FMCG sector. In fact, most ad campaigns are about FMCG goods and rightly so. This is because the rate of consumption of FMCG goods is any day more than high-end products, which means you are surrounded by FMCG products for the better part of your life. Wouldn't you want to be much more cautious about the quality of products you consume on a daily basis, and which more often than not, you literally consume?

    I don't think pricing's the answer because competitive pricing is already the bane of the FMCG industry; anyone who prices his products higher, is bound to lose his market share, and it's impermissible for all players to collectively spike their prices. I think its more a question of the consumer developing a more discerning taste and appreciating the effort FMCG producers put in distinguishing the quality of their goods from those of their competitors, within the narrow pricing room available to them.