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Trade dress means the visual features of a product that may include shape, size, colour (or colour combinations), graphic designs and packaging. It includes the overall appearance of a product. It helps customers in identifying products of a particular manufacturer. All such features are protected under the Trade Marks Act, 1999. It is important to prevent competitors from imitating trade dress because they can be easily copied thus affecting the goodwill and profits of the owner of the trademark.

The concept of trade dress originated in the United States, where it enjoys protection under a legislation called The Lanham Act. Section 43 of the Act states that trade dress can be protected without needing a formal registration in the Patent and Trademark Office.

Under Section 43(a), it is mentioned that commercial usage of any word, term, name, symbol, device or a combination of the above or false descriptions of origin, misrepresentations, which has effects of confusing or misleading other persons into approving the goods/commercial activities is prohibited. It also covers the words, symbols, shapes, etc which is used in commercial advertisements that misrepresents the particulars about the goods pertaining to a geographical origin, qualities, among others.

Why Protect Trade Dress?

Customers usually buy products that they have developed a liking for. It is mostly the visual appearances that guide many customers in identifying their preferred products. Even educated customers find it difficult to differentiate two similar looking products sometimes. Only after buying that they may choose to inspect closely to find a different brand name that sounds similar and packed similarly to a better product. Many sellers prefer stocking imitation goods since they offer better profits to them. Thus, it can get difficult for genuine trademarked products to reach all customers who desire to purchase them.  Trade dress should be protected to prevent customers from being misled into purchasing substandard articles and to protect the interests of genuine manufacturers.

Legal Recognition Of Trade Dress India

Trade Dress is a relatively new concept in India, and does not find explicit mention in the Trade Marks Act, 1999. However, as a formal protection to trade dress, the definition of trademarks or marks in the Trade Marks Act, 1999, includes details such as shape, packaging and colour combination. Thus, the Trade Marks Act addresses the concept of trade dress as dealt by The Lanham Act.

According to Section 2(m) of the Trade Marks Act, a ‘mark’ or a trademark can include a device, heading, brand, name, ticket, label, signature, word, numeral, letter, the shape of goods, packaging or combination of colours or any combination of all the above descriptions. Section 2(q) states that package can include items like box, container, folder, covering, vessel, receptacle, band, label, ticket, frame, reel, cap, capsule, lid, cork and stopper.

It may be noted that all aspects covered under the US Law have been addressed in these definitions.

Also, Section 10 of the Act specifies protection to be given to colours and colour combinations. Traditionally, Indian laws have addressed the issue of trade dress under passing off laws, which are roughly similar concepts. Both do not require formal registration and are connected to goodwill and reputation built over time.

Noteworthy Indian Case Laws

Given below are some cases that project the protection given to trade dress in India.

• Cadbury India Limited and Ors. Vs. Neeraj Food Products
  A company by name Neeraj food products launched a food product similar to ‘Gems’, a popular chocolate product by Cadbury. Their product was called ‘James Bond’ and the colour schemes and nature of the foods were similar. This was contested by Cadbury in whose favour there was a decree that restrained Neeraj Food Products from using trademarks and packaging similar to Cadbury.
• Parle Products (P) Ltd. v. J.P. & Co., Mysore
  The defendants, J.P & Co., Mysore launched a brand of biscuits similar to Parle G. Both the packs looked virtually the same, with the same colour scheme, similar design and size. The Supreme Court said that in order to ascertain deceptive similarity, both packages need not be placed side by side and compared, but an overall similarity would suffice, and action was taken against the defendants.
• Gorbatschow Wodka Kg v. John Distilleries Limited
  Gorbatschow Wodka is one of the most premium brands of Vodka in the world. Its bottles have a unique bulbous shape inspired by Russian Architecture. John distilleries, an Indian company launched a product called Salute Vodka with a similarly shaped bottle, but a different trademark and colour of label. Though John distilleries argued that the consumers of Gorbatschow Vodka are affluent and can never get confused by an economic brand like Salute, the Bombay High Court decreed that the shape of the bottle is deceptively similar and that it will tarnish the image of the plaintiff if the defendant is allowed to sell the same. Thus, the defendant, John distilleries was stopped from using the shape of the bottle for selling their products.