Introduction
Companies can protect or register trade dress which is the external visual appearance of their products, including shape, packaging, and colour combinations to distinguish their goods or services. It helps customers identify and distinguish it from other companies’ products just by seeing it from the outside. The United States is the country to recognise trade dress.
Objective
The main objective is to protect consumers from identifying the right product. It prevents consumers from buying other products. By seeing the packaging or appearance of the product, it is helpful for the illiterate consumer to differentiate the product based on the packaging, and they can select the right product which they want to use.
Legal Framework
- In the United States, the Lanham Act governs it, and businesses can register it with the U.S. Patent and Trademark Office (USPTO).
- The Trade Marks Act, 1999 protects it in India.
Essentials of Trade Dress
- It covers size, shape, colour, texture, etc. of the item.
- Unique packaging of the product from other products.
- The colour of the product also provides unique identification to the product.
Advantages of Trade Dress
In the highly competitive market, an Identical visual appearance of products is important for customers to differentiate a product from other products.
- It enhances the recognition of the brand by the consumers without facing difficulties.
- It builds trust among consumers and also protects the position of a product in the market.
- If it becomes well-known, it increases the brand value of the product.
- It is a valuable intellectual property asset.
Trade Dress Protection in India
The Trademark Act does not provide a specific definition, but due to continuous development in Intellectual Property Laws, a new Amendment recognised them under section 2 of the Trademark Act. Both State and Federal Laws regulate it. These State and Federal Laws prohibiting businesses from duplicating, fraud or cheating.
Section 2 of the Trademark Act
“Trade mark refers to a unique identification mark that can be graphically represented, and it can be used to differentiate one person’s goods or services from those of others. This can include the shape of the goods, their packaging, and color combinations; and—(i) about Chapter XII (apart from section 107), a registered trade mark or a mark used for goods or services to indicate or to indicate a connection in the course of trade between the goods or services, as the case may be, and someone who has the right as proprietor to use the mark; and
(ii) by other provisions of this Act, a mark that is used or intended to be used in connection with goods or services to indicate a connection in the course of trade between the goods or services, as the case may be, and someone who has the right to use the mark—either as the proprietor or as a permitted user—whether or not that person’s identity is disclosed; this includes a certification trade mark or collective mark.”
Registration
- There is no separate mechanism for registration of Trade Dress; any company or business can register the trade dress as a trademark under the Trade Marks Act 1999.
- For registration, the trade dress must be unique and distinctive.
- Any company or business can apply to the Indian Trademark Registry and provide the detailed information regarding the trade dress uniqueness and distinctiveness accordingly with criteria.
- After that, the application will be examined by the Trademark Registrar, who has the power to object to the trade dress if it doesn’t meet the required criteria. The company have a further opportunity to respond regarding the objection and can present further evidence if required.
- If the application is approved, then your trade dress will get registered for 10 years.
Case Law
Gorbatschow Wodka KG v. John Distilleries Limited (2011): In this case Plaintiff alleged that the defendant John Distilleries Ltd had copied the unique bottle shape of the Gorbatschow vodka. The ruling of the Bombay High Court in this case granted an injunction order against the defendant John Distilleries for infringing on the bottle design.
Conclusion
Trade Dress is the way for protecting the distinctive visual appearance of products from outside, which includes shape, packaging and combination of colours. It sets a product or brand, or service unique in the marketplace. Companies or businesses can protect their brand identification and the trust of customers by stopping other competitors from copying their unique packaging, design or presentation of product by obtaining legal recognition. Any company or business can protect their unique identity by registering trade dress.
References
- Arijit Mishra, Trade Dress Protection in India and the US, Ipleaders, 12 Feb 2020, https://blog.ipleaders.in/trade-dress-protection/
- Nimrat Singh, Concept of Trade Dress in India, IIPR, 10 March 2022, https://www.iiprd.com/concept-of-trade-dress-in-india/
- Trademark Act, 1999
- Gorbatschow Wodka KG v. John Distilleries Limited (2011), 2011 (4) BomCR 1
