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.
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.
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.
case is that of
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
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.
view on trade dress can be explained by the few cases on trade
dress in India:
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,
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.
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