Date: 10th January 2021
by Divya Menon, UILS, Panjab University
WHAT IS TRADE DRESS?
Over the years, the definition of a trademark has expanded to include the total image of the goods themselves like its packaging, shape, combination of colours or the graphic design. It refers to the visual or sensory appearance of the product.
A trademark offers legal protection for a logo, symbol, phrase, word, name, or design used to show the manufacturer of a product whereas a trade dress protects all elements used to promote a specific service or product.
Anything that creates the overall look and feel of a brand in the marketplace could be a trade dress.
The statutory requirement for the registration of trade dress is the same as that of the registration is word/ logo mark.
OBJECTIVES OF TRADE DRESS
Often under false presentation, consumers buy an inaccurate product assuming it to be the original one. To prevent such errors, trade dress protection is done.
Competitors try to lure consumers by imitating a popular brand that sells the same product. Trade dress protection is intended to protect consumers from packaging or appearance of such imitating products.
Registration of trade dress, as with all other forms of the intellectual property, provides a distinct advantage to a business and prevents duplicity.
A registered trade dress has several advantages over a non-registered one in course of litigation.
TRADE DRESS IN INDIAN LAWS
There is no separate provision for trade dress in India under its existing Trade mark legislation unlike the US law which recognizes the concept trade dress under Section 43(a) of the Lanham Act.
The Trades Mark Act,1999 largely recognises the concept of trade dress on the lines of The Lanham Act.
The amended Act of 1999 recognizes trade dress through the new definition of Trade mark that consists of the shape of goods, packaging or combination of colours or any combination thereof.
It is Section 2 of the Trades Mark Act, 1999 that defines-
(m) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;
(q) "package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork;
Hence the new definition of trade mark under Indian law comprises all the elements of the trade dress as under US law. But one must agree that the jurisprudence around trade dress in India is still in its nascent stage.
DEVELOPMENT OF THE CONCEPT THROUGH CASE LAWS
Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd 1 (October 29, 2003) was the first case in India to acknowledge the concept of trade dress and provide protection for the same. Here, J. Kapoor held ‘This criterion flows from the concept of action of passing off developed over the years that it is the similarities and not the dissimilarities which go to determine whether the action for passing off is required or not. That is why in trademark cases even the deceptive similarities are considered sufficient for infringement of the trademark. If similarities of trade dress are substantial from the look of the two goods, it comes within the mischief of passing off."
Christian Louboutin Sas Vs Mr. Pawan Kumar & Ors.2 (December 2017, Delhi HC): a landmark case in first instance where a court has declared a trade dress a well-known status just like a trademark.
The growth in the concept of trade dress as seen through these cases point to the significance of courts according trade dress protection on similar grounds as that of trademark over the years.