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Trade Dress

Written by: Vidya Sunderam
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Trade dress refers to total image of the product. It encompasses the overall image created by the product or package. It includes features such as size, shape, package, colour or colour combinations, textures, graphics or even particular sales techniques. It refers to the overall get up of the product.
The basic features of a trade dress include that it must identify the product and its makers to the consumers. Also a trade dress must also be nonfunctional in order to be legally protected; otherwise it is the subject matter of patent law.

The concept of trade dress originated in the US. It was considered as the overall appearance of the labels, wrappers and containers used in packaging a product. With development of law, various elements were included in the definition of trade dress which now makes a shape or design of a product as a trade dress. E.g. the packaging of Mc Donald burger. Trade dress refers to aesthetic elements that provide legal protection for a brand's identity. For example, Coca-Cola�s bottle shape is a part of its trade dress Even the theme of a restaurant may be considered a trade dress.

Being an expansive concept, a trade dress includes- cover design of a magazine, design of a door knob, appearance of a water meter or a lamp, design of a sports shoe, distinctive performing style of a rock music group, etc.

A generic idea or concept is not a trade dress. Trade rights cannot be claimed in an ordinary or common place exterior or interior retail building design that is shared by many competitors.

Trade dress is governed by the same set of laws that protects unregistered trademarks. Like a traditional trademark, trade dress is a form of commercial shorthand that provides a "source-associating cue" for the unthinking purchaser. However, unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product.

An important case is that of Walmart stores v Samara Brothers(2000), where the trade dress of Samara Brothers Inc. consisted of a line of spring/summer one piece seersucker outfits decorated with flowers, fruits and the like. The court held that Walmart was guilty of infringement and that an unregistered product design is protected as trade dress if it is inherently distinctive or has acquired a secondary meaning.

In UK, the Act provides common law remedy of passing off as a protection for infringement of trade dress.

In India the Trademark Act 1999 which is based on the UK law provides no specific provision for trade dress. But with development of law, the Indian law now is at par with international standards. The act recognizes service marks and introduces well known marks. To streamline and simplify the procedure of registration, it is now made possible to file one single application for registration of mark in different classes of goods and services. It has also broadened the definition of trademarks to include shape of goods and combination of colour and it provides for registration of collective marks owned by associations etc. Under this, a product package (including its colour combination, size, shape etc.) or a product design/ configuration (as shape mark) may be registrable as a mark Indian law gives statutory and common law protection to trademark.

Trade dress in Indian Law on trademarks:

In India a trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and may include shape of goods, their packaging and combination of colours. The Act provides protection to marks which are distinguishable. The Trademarks Act1999 provides statutory recognition to the shape of goods, their packaging and combination of colours. E.g. in class11, protection is given to a particular shape of a barbeque; class30 recognizes the triangular shape applied to a chocolate. The Act defines package to include any case, box, container, vessel, casket, bottle, wrapper, label, brand, ticket, frame, capsule, cap, lid, stopper and cork. Trade dress protection is broader in scope than trademark. It protects packaging and product design which creates the overall brand value of the product. Trade dress is an important element in creating brand value. A trade dress is particular to a product. To be a trade dress it has to be distinctive. A trade dress can be claimed when it makes the product identifiable to the consumer. When the product is identified by the consumer a brand value is created. This means that the trade dress has an important role in creating a brand value for the product. This makes the protection of trade dress all the very important.

The Indian law on trademark provides for passing off action against use of similar trade dress. For infringement of trade dress, thus a passing off action can be claimed.

The Indian view on trade dress can be explained by the few cases on trade dress in India:
Colgate Palmolive Co v Anchor Health and Beauty Care Pvt. Ltd
The plaintiff sought an interim injunction against the defendant for use of the trade dress and colour combination of red and white in relation to identical products i.e. tooth powder, when the marks being used by the two parties were completely distinct, being Colgate and Anchor. The court held that It is the overall impression that a consumer gets as to the source and origin of the goods from visual impression of colour combination, shape of the container, packaging etc. if an illiterate, unwary and gullible customer gets confused as to the source and origin of the goods which he has been using for longer period by way of getting the goods in a container having particular shape, colour combination and getup, it amounts to passing off.

United Distillers Plc v Jagdish Joshi & others(2000)
The plaintiff is the owner of trademark Johnnie Walker for Scotch whisky. The defendants are manufacturers of Johnnie Walker Gutka. The plaintiffs sued the defendants for infringement of trademark and trade dress. The court held that the trade dress used by the defendant has a similarity with the trade dress of the plaintiff and had infringed the same.

The Indian law on trade dress has not yet been nurtured. It is at the development stage and the Colgate- Anchor case is the first of its s kind deciding on the passing off of a product by using same trade dress.

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