The concept of trade dress was formally recognized by the Lanham Act of the US[i] much before the introduction of this concept by the Indian Trademark Act, 1999. This is because there is no specific provision for the protection of trade dress in the Indian Trademark Act.

However, the law of passing off gives protection to the trade dress that enumerates product packaging, color pattern, color combination, shape texture, design, graphics, etc.[ii] The copying of the trade dress of a product can help the producers attract more customers because of the goodwill of the product it so copies. This concept is protected under Trademarks Act and is regulated by laws of unfair competition.

This article discusses the concept of the infringement of trade dress and its protection in the light of similar color combinations.

Concept of Trade dress

Trade dress, a subset of trademark necessarily refers to the get-up of a product.[iii] It can be defined as the prima facie look of the product that encompasses within itself the crucial details of a product relating to its visual appearance. It is that form of intellectual property that helps the customers analyze a product because of its distinctiveness.

The color scheme of the product, packaging, etc. being the same might confuse the consumers who are unaware of these tactics involved in befooling them. To avoid the trade dress from getting infringed on and consumers from getting deceived, the trademark Act of 1999 contains provisions for the protection of trade dress. A proprietor can claim remedy for infringement of trademark by proving distinctiveness, non-functional trade dress and that imitation of trade dress would be confusing. [iv]

Legislations encompassing trade dress in India

The concept of trade dress is taken from the Lanham Act of the US which formally recognized this concept. This is because the Indian Trademark Act of 1999 does not encompass any statute that deals with the concept of trade dress infringement. However, with the advent of time, Indian Act introduced a section that talks about the crucial elements of trade dress. The concept of trade dress was brought up in India with the 2003 amendment and is still developing. However, some sections of the Trademark Act give us an idea about the different elements of trade dress.

"Section 2 of the Trademark Act states that a graphical representation and the overall appearance of a product which distinguishes the goods and services of one person from other persons like the shape of goods, their packaging and combination of colors. This section also defines the terms- package, and Mark."[v]

Section 9(3) of the Trademark Act talks about the registration of the shape of goods.[vi]

The Indian Courts also consider trade dress as an important aspect of IP Law protection. It consists of features such as shape, size, packaging, and color combination. The Courts in various cases have recognized the color combination of the two products under different trademarks, the shape of the container, packaging, etc. as trade dress.[vii] These grounds help the proprietors in the protection of their trade dress.

The similar color combination of the packaging causes confusion

Trade dress is that element that helps the customers associates a product with a particular brand. The color pattern or color combination is one such aspect that customers likely associate with the brand besides the trademark. If the get-up or outlook of a product is similar to the famous brand then it will confuse the customers and they will get deceived.

A consumer being of normal intellect cannot understand the discrepancy at the prima facie look of it. The color combination and packaging of the two products being exactly similar would not give even the slightest hint of the discrepancy. Hence, the competitor brand could easily increase its sale because of infringing on the goodwill of the famous brand and earning profits thereby causing loss to the original proprietor.

'I went to the market to buy Maggi noodles but bought home Wai Wai noodles.' If I being a law student, who knows that such frauds can happen, get deceived then it is really common for the other customers to get deceived. The color combinations of the two products are exactly similar with not even the slightest difference in the color combination of the packaging. This is the case of imitation of the trade dress to utilize the goodwill of the Maggi brand noodles and earn humungous profits. Hence, the need for protection of trade dress is important to avoid fooling innocent customers. [viii]

In the case of Alkem Laboratories Limited v. Danish Health Care Pvt. Ltd. & Anr.[ix], the plaintiff claims that the defendant had copied their unique trade dress besides the infringement of the trademark. The plaintiff also accuses the defendants of using a deceptively similar trademark as well as the packaging with a color combination of peach and silver.

The visual representation of the defendants' trademark is also identical to the plaintiffs. So, a person having a prima facie look at the two products would not be able to point out the differences between them and will most likely associate the defendants' product with the plaintiffs. This case elucidates that a customer while purchasing pharmaceutical products buys it on the brand name of the product and not just on the brand name of the producer and hence confusion is bound to occur in this case. Hence, protection of trade dress is crucial to prevent customers from getting deceived.

Conclusion
Hence, we can conclusively say that Trade dress is one of the most essential aspects of a business to make the brand unique and distinctive in the eyes of customers. Trade dress protection is essential to prevent confusion and the customers from getting deceived. A customer recognizes the product of a famous brand by its characteristic features like the color combination.[x] It is one of the most aspects of giving distinctiveness to a product. Hence, a company must always choose a unique trade dress in order to avoid the competitors from copying it.

Otherwise, the imposters sell the copied products i.e., with the same brand name and trade dress but of inferior quality which in turn causes huge loss to the proprietor and impairs their brand name.

End-Notes:

1. Lanham Act S 43(a), 15 U.S.C. S 1125(a)
2. Gautam Kumar, Protection of Trade Dress- Developing Jurisprudence (May 5, 2022), https://www.mondaq.com/india/trademark/689348/protection-of-trade-dress-developing-jurisprudence
3. Kiran Mary George, Trade Dress law in the commercial kitchen: Exploring the application of the Lanham to food plating in the culinary industry (May 5, 2022), http://docs.manupatra.in/newsline/articles/Upload/1D11F646-E493-49B5-9E0D-7788D5C9B5EE.pdf
4. Anu Tiwari, Passing off and the law on Trade dress Protection: Reflections on Colgate v. Anchor, 10 NUJS L. Rev. 483 (2005)
5. Trademark Act 1999, Sec. 2, No. 47, Acts of Parliament, 1949 (India)
6. Trademark Act 1999, Sec. 9(3), No. 47, Acts of Parliament, 1949 (India)
7. Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd., 2003 (27) PTC 478 Del
8. Pranit Biswas & Sulagna Goswami, Nestle Maggi v. Wai Wai- Case Analysis (May 6, 2022), https://ssrana.in/articles/nestle-maggi-vs-wai-wai-mediation-trademark-disputes/
9. Alkem Laboratories Ltd. v. Danish Healthcare Pvt. Ltd. & Anr.
10. Huma Mehfooz & Gaurav Bhalla, Trade dress protection for websites: Is it a viable solution, 1 IJIIR 36, 36-46 (2016)

Award Winning Article Is Written By: Ms.Mahima Chanchalani

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