What Is A Trade Dress?
Trade dress means the packaging, visual appearance, shape, graphics, colour combination which can be registered and protected from being exploited by the competitors related to their goods or services. In other words, trade dress is a product’s “total image” or “overall appearance” and “may include features such as size, shape, color or color combinations, texture, graphics or even certain sales techniques. For example, packaging of Mc Donald’s burger or shape and packaging of coca cola bottles or registered store layout design of Apple store.
The objective of protection of a trade dress is to protect consumers from appearance or packaging of the products that are designed to imitate others and to prevent consumers from buying on product believing that for another.
Requirements of a Trade Dress to Be Registered:
Overall look and feel of a brand in a market place, which is created, can be a trade dress.
Belief of a consumer that the trade dress is the main source of distinguishing a brand from another.
The arrangement of colours, design, shapes etc of a trade dress that needs to be registered must not serve any other utility or function other than creating recognition to a customer.
All other requirements are the same as a logo mark.
Concept Of Trade Dress In India:
Trade dress is a new concept in India, therefore unlike the law of USA one cannot find any exclusive mention in the Indian Trademarks Act, but it is included in the definition of trade mark under sec 2 of The Trade Marks Act, 1999:
(m) “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof;
(q) “package” includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper an cork;
Indian courts also have started recognising the concept of trade dress earlier. Some of the judgements of different courts based on the concept of trade dress are as follows:
1. Colgate Palmolive Co Vs. Anchor Health And Beauty Care Pvt Ltd  On 29 October 2003:
This was an appeal by the plaintiff to the Delhi High Court to pass an ad interim injunction against the defendant. This case related to the trade dress i.e. colour combination of one third red and two thirds white, on the container of the tooth powder produced by both the parties. The injunction was ordered claiming there is likeliness of causing confusion among customers. The Hon’ble High court further held that “It is the overall impression that customer gets as to the source and origin of the goods from visual impression of colour-combination, shape of the container, packaging, etc. If merely looking at the article, one could get confused, then it is a case of passing off one’s own goods as those of the other with a view to encash upon the goodwill and reputation of the latter.”
2. Pernod Ricard S.A. France Vs. Rhizome Distillers Pvt. Ltd & Another on 6 November 2008:
This was an appeal filed by the plaintiffs for permanent injunction against the defendants restraining infringement of its registered trademark, copyright, passing off, rendition of accounts of profit/damages, delivery up, dilution, unfair competition, etc. of their trademark ROYAL STAG. Apparently, the injunction was allowed by the Delhi High Court as it amounted to infringement and passing off. The court is of the view that the trade dress has become distinctive of the plaintiff’s product by virtue of its use.
The concept of trade dress is still in a budding stage and there is no complete provision regarding trade dress in Indian Law. The above-mentioned judgements are some of the very first judgements given by the courts based on this concept.
Author: M.Sai Krupa, Intern at IP and Legal Filings and can be reached at firstname.lastname@example.org.
2003 (27) PTC 478 Del
2009 (39) PTC 367