Trademark infringement allegation of Oreo®, a Kraft Foods™ product by Britannia™

On February 03, 2011 in General

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“Oreo” is a trademark for a sandwich cookie manufactured by Kraft Foods™ Inc, one of world’s largest confectionary, food and beverage Corporation with its headquarters at United States of America. Britannia™, the Indian biscuits giant, recently launched the line of Treat-O™ biscuit which was alleged by Kraft Foods™ as resembling “Oreo® cookie Trade Dress” and its packing and has sought damages for infringement of trademark and copyright, passing off and unfair competition of its Oreo® brand. Consequently, Kraft Foods™ Inc. has filed an injunction suit against Britannia™ Industries Ltd for allegedly infringing the trademark and copyrights of its Oreo® cookies and Delhi High Court has asked Britannia™ to respond to the allegations by Jan 25th 2011.

 Trade dress refers to the overall image of the product and encompasses features such as size, shape, package, colour or colour combinations, etc. Expansively, it refers to the comprehensive get up of the product. The perspective of a trade dress is basically to identify the product and its makers to the consumers. Thus, a trade dress is characteristic of a particular product and is very important for its brand value.  To be legally protected, a trade dress must be non-functional contrary to which it becomes the subject matter of patent law. A trade dress is non-functional if, taken as a whole; the collection of trade dress elements is not essential to the product’s use or does not affect the cost or quality of the product even though certain particular elements of the trade dress may be functional. In India, the concept of trade dress was first brought in under the Trademarks Act, 1999 under the definition of ‘mark’ which replaced the previous Trade and Merchandise Marks Act, 1958. Under the Indian trademark law, any distinctive and identifying ‘mark’, which is capable of distinguishing the goods and services of one owner from that of another, may be utilized as Trademark and such marks are afforded protection under the law. The Indian law on trademark provides for passing off action against use of similar trade dress and hence, for infringement of trade dress, a passing off action can be claimed.

Resuming the discussion on the injunction suit against Britannia™ Industries Ltd by Kraft Foods™, an analysis of the trade dress of Oreo® and Treat O™ shows both similarities and dissimilarities which have been tabulated below:

Similarities	Dissimilarities
Both Oreo® and Treat-O™ consists of two round chocolate pieces with a sweet, white filling referred to as ‘cream’.	The colour of the round chocolate pieces of the Oreo® cookie is black whereas that of Treat-O™ are brown.
Oreo® has unique etchings consisting of fine edge linings, inner rings and florets embossed on it. Treat-O™ has similar etchings.	The spacing of the etchings of Treat O™ are far apart as compared to that of Oreo® and unlike Oreo® where “Oreo®” is embossed in the middle of the cookie, Treat-O™ has a floral motif embossed in the middle.
The packaging of both Oreo® and Treat- O™ are blue in colour. In Treat-O™, emphasis is placed on “O” which seems to be inspired from Oreo®.	In the packaging of Treat-O™, the font of “Treat-O™” appears red in colour.

 

Fig 1: Oreo® (on the left) and Treat-O™ (on the right)

 

Fig 2: The packaging of Oreo® and Treat-O™

Based on the analysis of the two cookies along with the packaging, my conclusion is that some similarities are apparent but the products are not identical. The High Court hearing on 25^th January will ultimately decide the tenability of Kraft Foods™ claim that the products are not discernible to consumers.

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