TRADE MARK - Evolving Dimensions of Trade Dress Protection in India-In today’s competitive, visually driven marketplace, consumers identify products by their overall visual identity such as colours, shapes, packaging, and presentation rather than just brand names or logos. These elements shape perceptions, influence choice, and strengthen brand recognition, making appearance central to branding and market positioning. Legal protection has evolved accordingly: once limited to packaging, it now covers distinctive visual characteristics that indicate origin. When these characteristics function as indicators of origin, they acquire legal significance and merit protection under trademark law.

Indian trademark law, however, does not clearly define or regulate trade dress. The Trade Marks Act, 1999 does not recognize trade dress as a separate form of protection and only refers indirectly to packaging and other visual elements. Due to this lack of clarity, courts have taken the lead in developing the law on trade dress. Most of this development has taken place through passing off actions and judicial interpretation of general trademark principles.  Black’s Law Dictionary defines trade dress as “visual impression that is made by totality of all elements used to package or present a service or good for sale giving it a recognizable look.”

Trade dress, therefore refers to the overall visual appearance of a product that helps consumers identify its source. Unlike traditional trade marks, which protect brand names or logos, trade dress protects how a product looks including its packaging, colour schemes, shapes, layouts, graphics, and overall presentation. What matters is the combination of these features, not any single element in isolation, as it is the overall impression that consumers associate with a particular brand.

A clear example for this is the iconic purple packaging of Cadbury Dairy Milk, along with its font, layout, and imagery. Consumers recognize the chocolate almost instantly, even without reading the brand name. While the colour alone is not unique, the full combination of visual features has become strongly associated with the brand. Enforcing Rights over Unregistered Trade Dress

In actions relating to trade dress infringement, an unregistered trade dress is ordinarily protected through the common law remedy of passing off, aimed at preventing unfair competition. To claim protection of an unregistered trade dress in such litigation, three essential requirements must be satisfied. These requirements constitute the three-prong test which requires the plaintiff to establish distinctiveness, non-functionality, and likelihood of confusion, when asserting rights in an unregistered trade dress or alleging unfair competition, along with the identification of the elements constituting the trade dress.

In a trade dress infringement suit, the plaintiff must first clearly identify the combination of packaging or design elements constituting the trade dress for which infringement is alleged and protection is claimed. In doing so, the plaintiff must consider whether the combination is distinctive, unique, and non-functional, whether it identifies the source or origin of the plaintiff’s goods or services, and whether the same or a substantially similar combination has been imitated by the defendant. Inherent Distinctiveness or Acquired Distinctiveness

Under the three-prong test, the plaintiff must establish that the trade dress is either inherently distinctive or has acquired secondary meaning. A trade dress is inherently distinctive when it clearly indicates the source of the product, enabling consumers to distinguish it from competing goods, and such trade dress is protectable without proof of secondary meaning. In this context, only fanciful, arbitrary, or suggestive trade dress qualifies as inherently distinctive.

Non-Functionality

In a trade dress infringement action, the plaintiff must show that the trade dress is ornamental or decorative and does not serve any utilitarian function. The defendant may argue functionality by demonstrating that the trade dress is essential to the product’s use or purpose, affects its cost or quality, and that exclusive rights would place competitors at a significant non reputation related disadvantage.

Likelihood of Confusion

Once the plaintiff establishes protectable rights in the trade dress, the next question is whether the defendant’s trade dress creates a likelihood of confusion. Infringement occurs where such similarity is likely to cause consumer confusion as to the origin, sponsorship, or approval of the goods or services.

In assessing the likelihood of confusion, courts weigh factors including:

1.      The strength of the trade dress (more distinctive or well-known trade dress enjoys broader protection)

2.      Similarity between the parties’ trade dresses

3.      Similarity of goods or services offered under the trade dress

4.      Overlap in distribution channels and customers

5.      Purchaser sophistication and product cost (more careful or expensive purchases reduce likelihood of confusion)

6.      Similarity in advertising and promotion methods

7.      Defendant’s intent (good faith vs imitation) and

8.      Evidence of actual confusion, which, while not required, strongly supports a finding of likely confusion.

 

Protection of Trade Dress by Registration

Under Indian trademark law, statutory protection of trade dress requires compliance with only two conditions namely non-functionality and inherent distinctiveness or acquired secondary meaning. The requirement of likelihood of confusion, which is essential in actions concerning infringement of unregistered trade dress, need not be proved for the purpose of registration, provided the application is made in accordance with the prescribed statutory procedure.                                                                                     

Judicial Pronouncements and Case laws

ITC Limited v Britannia Industries Ltd, 2023 SCC OnLine Mad 6972

The Madras High Court upheld a lower court order restraining ITC Ltd. from selling Sunfeast Mom’s Magic Butter Cookies in a blue wrapper deceptively similar to Britannia’s well-known Good Day Butter Cookies. Despite differences in brand names and individual elements, the overall colour scheme and packaging were likely to confuse consumers. The Court held that ITC’s design infringed Britannia’s trade dress and reflected dishonest adoption, upholding the injunction while allowing the sale of existing stock already in blue wrappers.

 

Pernod Ricard India (P) Ltd. v. Gagan Wine Trade and Financiers Ltd., 2023 SCC OnLine Del 5711

 

The Delhi High Court granted a permanent injunction in favour of Pernod Ricard India (P) Ltd., restraining Gagan Wine Trade & Financiers Ltd. from using the ‘Imperial VAT No. 1’ label, packaging, and trade dress found deceptively similar to Imperial Blue whisky. The Court held that imitation of key elements particularly the blue, white, and gold colour scheme, brand presentation, and insignia placement amounted to infringement and passing off. The defendants were permitted to clear existing stock within a limited period and to use the mark in new, non-infringing packaging.

 

Zydus Wellness Products Limited v. Cipla Health Limited, 2023 SCC OnLine Del 3785

The Delhi High Court restrained Cipla Health Limited from using the marks GLUCO-C and GLUCO-D for oral rehydration products, holding them deceptively similar to Zydus Wellness Products Ltd.’s GLUCON-C and GLUCON-D. However, the Court found no deceptive similarity in the defendant’s trade dress, noting that the overall packaging and appearance were sufficiently distinct from the perspective of an average consumer with imperfect recollection. It further observed that use of the marks Prolyte Gluco-C++ or Prolyte Gluco-D++, together with a distinct trade dress and prominent display of Cipla Health’s identity, negated any likelihood of passing off.

 

 Colgate Palmolive Co v. Anchor Health and Beauty Care Pvt. Ltd, 2003 (27) PTC 478 Del

Colgate Palmolive sought an interim injunction against Anchor Health and Beauty Care Pvt Ltd. for using a similar red-and-white trade dress for tooth powder, despite the two party’s marks Colgate and Anchor being distinct. The Court held that passing off depends on the overall visual impression conveyed by the colour combination, container shape, packaging, and get-up, particularly from the perspective of an illiterate or unwary consumer. In assessing passing off, similarities and not dissimilarities are decisive. As the trade dress and overall presentation were substantially similar, the Court held that the use fell within the mischief of passing off.

Conclusion

In today’s competitive marketplace, a product’s visual identity i.e., its trade dress has become as crucial to brand recognition and consumer choice as its name or logo. Indian jurisprudence, though yet to codify trade dress as a distinct form of protection, has gradually developed a framework through which both registered and unregistered trade dress are safeguarded. Courts have played a pivotal role in shaping the contours of trade dress law, relying on principles of passing off, inherent distinctiveness, non-functionality, and likelihood of confusion to resolve disputes. While statutory registration provides stronger, more secure rights, unregistered trade dress continues to enjoy protection under common law remedies, ensuring that consumer perception and brand identity are not unfairly exploited.

As the market becomes increasingly visually driven, the recognition and protection of trade dress in India are likely to expand further. Strengthening legal clarity, awareness among businesses, and consistent judicial interpretation will be key to ensuring that trade dress continues to serve as a vital tool for distinguishing products, promoting fair competition, and protecting intellectual property rights in the modern commercial landscape.