To prove that there is some sort of IP rights infringement, the key requirement, Vutts says, is for a company to “establish reputation”. This is an onerous exercise that a company has to go through to prove that a particular design or color combination or shape is so strongly associated with its product that customers would immediately assume something with a similar design is that very same product.
Success is not achieved overnight
Even KitKat, owned by Nestle, has struggled for years to get the iconic four-finger shape of its chocolate wafers recognized as unique—in many countries, it’s still not a protected design.
What’s more, if a company comes out with a product that has packaging very similar to another product, but there are a few key differences in terms of design elements, then there’s no question of a rights violation at all. Take a look at Patanjali biscuits versus Good Day biscuits again.
Very similar, you would think—from the shape of the package to the colors to the imagery. But if you consider it more carefully, the shape is that of a generic biscuit packet, and the images of biscuits are generic too.
Further, Patanjali doesn’t have the Britannia or Good Day logos or anything remotely similar; its own logo is positioned very differently; and there’s an additional design element on the left, with its “0% maida” assertion. Legally speaking, there are no grounds for calling Patanjali’s design infringement of Britannia/Good Day’s design.
“Most companies, including Patanjali, do a proper brand study before launching, so you will not end up seeing a lot of big companies fighting against each other. They will encroach into each other’s territory but not fight with each other,” says Vutts. They do often enter disputes over advertising, but those, he says, are just tactical battles—a way of saying that “my product is better than your product”.
(Many of these disputes are over one company making an ad that pokes fun at or “disparages” another company’s ads or products. They’re quite common, and Patanjali is no stranger to this, with cases filed against its ads by the likes of Dabur, Reckitt Benckiser, and Hindustan Unilever. But that’s another story altogether.)
Quick to Settle
“Even if they do get into [IP violations] by chance, then they are quick to settle it, they will not let it come out into the market. And Patanjali is following exactly the same model. There’s absolutely nothing wrong in their branding strategy, per se,” adds Vutts.
And indeed, none of the companies whose products we saw above—the likes of Nestle, Dabur, Britannia, and Mondelez—seem to have taken offense at Patanjali’s apparent mimicry. None of the major FMCG companies offered comments when Ken reached out to them for this piece.
Beyond the narrow prism of legal recourse, there is an aspect of a brand’s and a company’s “soft power”.
Which brings us to an interesting situation with Super Star chocolate, Patanjali’s 5 Star clone. PriyaGold (Surya Food Agro Ltd), a home-grown maker of biscuits and other snacks that’s over two decades old, had chocolate by the same name.
Not only had the company applied for a trademark for “SuperStar”, but it had also signed up Bollywood celebrity Katrina Kaif in March this year to feature in a rather terrible commercial featuring the product.
Stop of the sell
When The Ken contacted PriyaGold’s office, we were told the company had mysteriously stopped selling the chocolate about two months ago. Requests for comment over the phone and on the email received no response. A silent ode to Patanjali’s and Baba Ramdev’s soft influence over the powers that be?
Or maybe the chocolate just wasn’t doing well and PriyaGold decided to shelve it, just months after (presumably) paying a hefty sum for a celebrity brand ambassador?
We may never know. But the PriyaGold website does have a new star—a “Choco Caramel Nouga” bar called Hunk; the packaging is a different color, but the chocolate bar on display looks exactly like SuperStar (which was also “Choco Caramel Nouga”). And yes, there’s a picture of Kaif eating it.