Trademark Protection of the Trade Dress

The term "trade dress" refers to all of the components that combine to form the overarching impression of a product or service. A product's colour, form, size, configuration, and packaging are all aspects that fall under this category. However, this list is not exhaustive. Trade dress, which is a subcategory of intellectual property, may refer to not just the appearance of a product or service but also its packaging, signage, and any other element that differentiates it from competitors' offerings.

What is Trade Dress?

In India, trade dress is covered under the Trade Marks Act, 1999 and the rules made thereunder. Under this Act, trade dress can be registered as a trademark if it is unique enough of distinguishing the goods or services of one person from those of others and is not primarily functional. This is what the "whole image" of the product or service looks like, sometimes called its "overall appearance."

Brief History of the Trade Dress

The term "Trade Dress" is not explicitly defined in the Trademark Act; nonetheless, this information is provided in the Lanham Act. The Act, on the other hand, acknowledges trade dress by means of specific definitions included in Section 2. To begin, the definition of a "trademark" in Section 2 (zb) indicates that it encompasses a mark that is capable of being represented graphically and that is able to differentiate one set of products or services from another.

Second, according to Section 2(m), the term "Mark" can refer to a device, a brand, a heading, a label, a ticket, a name, a signature, a word, a letter, a numeral, the shape of goods or packaging, a combination of colours, or any combination thereof. Furthermore, according to Section 2(q), the term "Package" can refer to any case, box, container, covering, folder, receptacle, vessel, when taken together, the following three definitions are used to define what is often referred to as a "Trade Dress."

This idea originated from the Lanham Act of 1946, which was passed in the United States. According to section 43(a) of that law, a product's trade dress may be protected without the need for any type of official registration. This definition includes "any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, is liable." In other words, "any person who uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact.

Trademark Protection for a Trade Dress in India

Protected under the Trade Mark Act, 1999 and the rules made there under, "trade dress" refers to its outward appearance and includes various distinguishing characteristics such as its form, size, packaging, colour combination, textures, graphics, and so on.

This part of the product is governed by the trademark law. Even though there is no separate provision that specifically deals with "Trade Dress," it is offered protection in the Indian Trademark Act of 1999, and under the common law of passing off, which includes the aspect of packaging, shape of goods, colour combination, and so on.

This protection is offered despite the fact that there is no separate provision that specifically deals with "Trade Dress." To be able to qualify under the common law of passing off, the product's packaging and design must have some kind of inherent distinctiveness, or the product must have acquired a distinctive character as a result of its presence in the market for an extended period of time. Alternatively, the product may have been in existence for a considerable amount of time before it acquired a distinctive character. Protecting a company's trademark or trade dress is done primarily with the intention of preventing customers with untrained eyes from being misled into believing that a product is identical to the original product and buying that product rather than one that looks deceptively similar but comes in a different package.

The Indian court plays a very crucial role in the creation of legislation connected to trade dress and in giving protection for the same. This is because the law relating to trade dress in India is still highly immature and in a very fledgling stage. The issue that was brought before the court in Colgate Palmolive Company vs Anchor Health & Beauty Care Pvt. Ltd. in 2003 was regarding the red and white colour combination that was being used for the purposes of packaging the products, which was likely to deceive the consumers.

This case is considered to be one of the very first cases that provided protection to trade dress. In this case, the court emphasised the importance of taking into account not the dissimilarities between the product package designs but rather the general resemblance between the two designs when determining whether or not an infringement has occurred.

It was also determined that the existence of any real confusion is not essential in order to continue with the action of passing off; rather, the mere probability of confusion is sufficient for moving forward with the activity. This case was crucial in establishing the framework for the protection of trade dress in India.


The primary goal of providing legal protection for trade dress is to put a stop to practices such as counterfeiting and incorrect association, both of which may result in the exploitation of the original inventor. The modern corporate world is cutthroat, and as a result, competition pushes organizations to adopt practices that may not always be in accordance with legal or ethical standards. The concept of uniqueness is at the heart of this problem, and detailed characteristics play a significant part in the process of distinguishing different items. Because the vast majority of the Indian populace is unaware of reputable businesses that invest time and energy into the research and quality control of their goods and services, they are easily fooled by false advertising and items that are designed to trick them.

It is very necessary for businesses to develop protection plans for their goods that fall within the purview of a trade dress. Although the Indian Trademark Act does not provide explicit protection for trade dress, the definitions that have been addressed above, combined with the precedents that have been put down by the Indian courts, encompass all characteristics that are explained in Section 43 of the Lanham Act. The current state of affairs and its comprehension is a step in the right direction, even though a better definition of trade dress via explicit provisions would assist establish a more concrete and solid grasp of this subject matter.


Q1. What are the benefits of trade dress registration?

Ans. Major benefits of trade dress registration are, it protects the registered image and design from being copied and prevent infringement or risk of confusion and in case of infringement, it also helps to get compensation.

Q2. Which companies can benefit from trade dress registration?

Ans. Companies that can get benefits from the trade dress registration are, food companies, restaurants, designer shops, computer products, and any other industry players with unique and non-functional designs.

Q3. How long does it take to complete a trade dress application?

Ans. In a normal circumstance, eight months required to complete a trade dress application. However, if any legal issue arises, then it may take more time.

Updated on: 20-Feb-2023


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