Dec 05,2018 | 15 min read

Trade Dress - Hand In Hand - With Trademark

Trade Dress - Hand In Hand - With Trademark

  • Introduction:–

The concept of trade dress has first emerged in US laws. Today for every businessmen it is very important to decide a trade dress for goods or services of his business, like any other financial decision of a business. Therefore we can say that Trade Dress is having an indispensable place in business. Trade Dress shall be unique, creative, distinctive and commercially viable, in order to attract customers’ attention, which results into more sales, name, fame, popularity for a particular business.

  • Meaning:–

In general the term trade dress means a physical or visual appearance of a good or service. Trade dress includes shape, design, color or color combination, packaging material and décor, internal or external appearance of goods or services. It gives the value and recognition to the product or service in the market. With the help of creative and distinctive trade dress, it is easy for a businessman to compete with similar products in the industry.

  • Legal Sanctity:–

1. The position in US is well settled as far as trade dress is concerned and US courts had played a vital role in this. The US Supreme Court had unfolded different sections of the Lanham Act, 1946, to provide better protection in infringement cases and to confirm the legal presence of trade dress in the commercial world. The US Supreme Court had given a broader interpretation to the concept of ‘Trade Dress’ in various landmark cases; in order to enlarge the scope and meaning of term ‘Trade Dress’. The court has recognized trade dress in cases like (Two Pesos, Inc. V Taco Cabana, Inc. 1992, Wal-Mart Stores V Samara Bros., Inc. 2000).

  1. In India the scenario is also very much in line with US position of trade dress. Indian courts have recognized the concept of trade dress and put a stamp on its’ commercial existence and value. The Hon’ble Delhi High Court has recently delivered a judgment in ‘Colgate Palmolive Company and Anr. V Anchor Health and Beauty Care Private Limited’ recognizing the concept of trade dress. Indian Trademarks Act, 1999 did not mention separately anywhere in the Act, about the concept of trade dress, but if we go by generic meaning of the term trade dress, we found that there are few references about trade dress in Section 2 clause (m), (q) and (zb), of Trademarks Act, 1999.

Section 2 clause (m), (q) and (zb) are reproduced below for reference:-

  • 2(m) talks about the definition of “mark” which includes the components like label, shape of goods, packaging, and combination of colors, etc.
  • 2(q) talks about the definition of “package” which includes box, container, band, casket, bottle, wrapper, label, reel, cap, stopper and cork etc.
  • 2(zb) talks about the definition of “trade mark” which includes shape of goods, their packaging and combination of colors, graphical representation of mark.

The definition of package has majorly covered factors related to trade dress, and we can use any of them as a trade dress for our goods or services. Similarly the definition of “trademark” has covered shape of goods, color and combination of colors etc which is ultimately useful for trade dress.

2. Following are some of the examples of trade dress for better understanding and clarity:

Decor of Mexican Restaurants chain, Packaging of Cadbury Dairy Milk or Dairy Milk Silk, Food Packaging of Mc-Donald’s, Shape of Coca-Cola bottle and label, Front Grill of Rolls Royce Car, Packaging style of Ferrero Rocher Chocolates, Apple phones etc.

  • Characteristics/Features of Trade Dress:-
  • Inherently distinctive (distinctiveness)
  • Non-functional
  • Unique, useful and novel
  • Creative
  • Difference in visual appearance to be judged by eyes
  • Interior and/or exterior décor shall be different
  • Graphically presentable
  • Shape, packaging, color or combination of colors
  • Trade Dress Infringement:-

Trade dress infringement means using similar or deceptively similar packaging, cover, visual appearance of goods or services of one person by another person; which creates confusion about the source of products or services, in the minds of ordinary consumers.

Trade Dress infringement is an unauthorized use of packaging, label, color combination etc of particular goods or services of a trader, and which leads to confusion, deception, or misrepresentation about the source of particular goods or services, in the minds of ordinary consumers.

US Courts have used the standard term ‘Ordinary Buyer’ while deciding various cases, which mean an unthinking consumer who believes that the particular product or service is belongs to famous, reputed and genuine business source.

  • Remedies in Trade Dress Infringement cases:-

The prima facie relief which is available with the owner or registered user of a trade dress; is civil suit for an infringement.

In case of unauthorized or unpermitted use of unregistered trade dress, a common law relief i.e. action of passing off, is available with the owner or proprietor of unregistered trade dress.

Other remedies are available like compensatory remedy, monetary relief or reward for damages to the plaintiff.

Criminal action can also be taken in case of falsification of trademark or trade dress under section 103 and 104 of Trademarks Act, 1999. In such cases the court can grant following reliefs:

  • Imprisonment for a period of minimum 6 months or maximum 3 years and a fine of Rs. 50,000/- or which may be extend to Rs. 2,00,000/-
  • Account of profit
  • An order for delivery-up of infringing labels or marks for destruction or erasure.
  • Case laws:-
  • ITC Limited V. Britannia Industries Limited
  • Colgate Palmolive V. Anchor Health,
  • Qualitex V. Jacobson Products, 1995
  • Ideal Toy Corporation V. Plawner Toy Manufacturing Corporation
  • Frito Lay India V. Uncle Chips Private Limited
  • Apple Inc. V. Samsung


To protect trade dress is crucial for every businessmen in today’s competitive era. In order to create healthy competition and fair business practices, each and every businessmen should invent or create a unique and distinctive trade dress for his/her products or services. Trade dress is one of the types of trademark and has its’ inevitable place in the growth and expansion of business. In India trade dress is governed by Indian Trademarks Act, 1999 and to some extend principles of common law.

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My area of practice is Company law, Trademarks and Copyright and Indirect Tax (GST),NCLT – company law and IBC matters. I am also providing drafting and vetting services related to legal documents. Business setup, advisory and startup registration services, Charitable Trusts – registration and compliance services.