Trade dress is the arrangement of identifying the characteristics or decorations connected with a product, whether by packaging or otherwise, intended to make the source of the product distinguishable from the product of another and to promote in the sale.
In essence, the trade dress is the company’s image within the market. For instance, the packaging of McDonald’s burgers, the shape of a Coca-Cola bottle, the cover of a magazine, etc. forms part of the trade dress. Trade dress may include various characteristics of product traded, the technique of sale, and various other factors that form the entire business of the trader. Characteristics might include packaging, logo on the product, slogans attached with the logo, shape of the product, colours used on the products packets.
Trade dress denotes the total image of the business and includes the size, colour pattern, external configuration of the goods or their package, wrappers, labels, and the dress in which goods are offered to the consuming public including its texture, graphics, style of writing, business literature or any other additions to the articles in the conduct of the claimant’s business.
In the present day, the expression trade dress of the product denotes the whole visible external appearance of the goods in the form in which they are likely to be seen by the purchasing public. This view became clear from the decision in the case of Hoffman-la Roche & Co. v. DDSA Pharmaceuticals Ltd.
In Colgate Palmolive Company v. Anchor Health and Beauty Care (2003), it was held by the court that where there is the similarity of two trade dress of the two same or similar products then this amounts to passing off. The Colgate Palmolive Company has introduced a new trend in the market as it started litigating to monopolize its trade dress of red and white colour, and not to allow any competitor to even come too near to their trade dress. Not only they were successful in keeping the Anchor and Ajanta toothpaste at distance from its trade dress but they also contributed to a new practice of protection of trade dress in India.
In N. Ranga Rao v. Anil Garg (2006), it was laid down by the Court that to establish infringement the trade dress is to be seen as a whole and not in parts. The suit for a permanent injunction of the plaintiff in the case was successful as the copying of the packaging of incense sticks and the colour scheme as well as the trade name of the well-known product of the same range was held to constitute infringement. Thus, as per the Indian position before alleging infringement regarding trade dress, one should rely on the following factors:
Color combination, get up, layout and even size of a container is a kind of trade dress that involves the overall image of the product’s features. Now wide protection is available for deceptively similar trade dress due to the fact that it is the trade dress that is the soul for identification of the products or goods, its source, and origin, and in such case confuses the minds of the unwary customers, those who are using the product for over a long time.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, White Code Legal and Tax shall not be responsible for any errors caused due to human error or otherwise.
