Introduction

“Don’t judge a book by its cover,” we’re told. Yet the moment a consumer steps into a supermarket aisle, that is precisely what they do. The red-and-white toothpaste box catches the eye before the brand name registers. The distinctive purple wrapper signals quality before taste is considered. In retail, packaging is the first ambassador of trust, sometimes the only one that truly matters.

But here’s the real question: what happens when one brand simply copies how another looks? Not the product itself, mind you, just the packaging, the colours, the bottle shape, the entire visual identity. Indian courts have wrestled with this for over twenty years now, building an intricate doctrine they call “trade dress.” It’s borrowed from America but now woven deeply into our own legal system. Yet here’s the catch: the United States explicitly codified trade dress in the Lanham Act. India never did. Our approach grew organically through judges making decisions case after case, which created both unexpected flexibility and real risks. Flexibility in adapting to market realities, yes. But also the danger of handing out what amounts to permanent monopolies over design choices that competitors reasonably need.

The Unspoken Asset

Let’s be straightforward about this: trade dress and trademarks operate differently. A registered trademark (a word, logo, a brand name) is fixed and formal. You can point to it, register it, protect it clearly. Trade dress is murkier. It’s the total look of a product. The curve of a bottle. How colours sit next to each other. The texture of packaging. Even how text sits on a label. None of these individually might matter. But together, they create something consumers recognize instantly, often without thinking about it.

The legal foundation sits in Section 2(1)(zb) of the Trade Marks Act, 1999. It permits “trademark” to include “shape of goods, their packaging and combination of colours.” That’s broad language, intentionally so. Courts have interpreted it to mean: if a product’s visual identity becomes so linked to one brand that consumers know who made it just by looking, that identity gets legal protection.​

When did this doctrine actually arrive in India? Formally, around 2003 when the new Trademark Act kicked in. But the roots run much deeper, back into English common law on “passing off,” which Indian courts inherited generations ago. For roughly two decades after 2003, trade dress remained something of a hidden tool. Big corporations deployed it to defend billion-rupee packaging investments. Law schools barely taught it. Legal journals ignored it. It was powerful but quiet, a weapon in the hands of those who knew it existed.​

The Test Courts Built (And Keep Refining)

When the Delhi High Court finally tackled Seven Towns Ltd. v. Kiddland in 2016, the framework had already solidified. Here’s what courts now require from a plaintiff: First, the dress itself must be distinctive in consumers’ minds. This can happen two ways. Either the design is striking and unusual enough to be inherently recognizable, or it’s gained secondary meaning through years of consistent use and heavy marketing. Consumers have learned to associate it exclusively with that brand. Second, the defendant’s version must be deceptively similar in overall appearance. Not carbon-copy identical, but similar enough that a consumer gets confused. Third, that ordinary shopper, reasonably attentive and familiar with that product category, would actually mistake one for the other.​

The reasoning sounds logical. Consumers rely on visual signals. They depend on packaging to guide purchasing decisions. If Brand A uses a distinctive red bottle with gold trim, and Brand B suddenly copies that exact look, shoppers get confused. They reach for Brand B thinking it’s Brand A. That’s unfair. That’s deceptive. Protecting visual identity prevents confusion and punishes copying. The logic is sound. But practical application? It’s messier.

Here’s Where It Gets Murky

Look at the recent cases: M.L. Brothers v. Uma Impact from 2023, and the wave of Delhi High Court decisions in 2024 and 2025 on packaging disputes. They expose something uncomfortable. Courts often grant what functions like a permanent monopoly on design choices when protecting trade dress. These choices are distinctive, sure. But they’re neither inherently unreachable nor genuinely harmful to fair competition.​

Consider a concrete scenario. Brand A has sold basmati rice in gold-and-red packaging with specific fonts for two decades. They’ve spent serious money on marketing. Brand B enters the market with genuinely superior rice. Better quality, clearly labelled with their own name, but uses similar gold-and-red packaging with comparable layout. Brand A files suit. Under current law, Brand B almost certainly loses. They can’t argue the design was functionally necessary, it wasn’t. They can’t claim the colours are generic. Gold and red work exceptionally well for premium positioning. So despite making objectively better rice, despite having their name visible on every package, Brand B gets blocked.

What happens next? Brand B doesn’t improve their product. They don’t innovate. They get shunted into whatever design corner Brand A hasn’t already staked a legal claim over. And as more corporations claim visual territory, the available space shrinks. Competitors face increasingly constrained options. It becomes visual musical chairs. Established players always move first.

Judges have actually started noticing this. They’ve begun demanding stricter proof from plaintiffs. M.L. Brothers stressed that companies must demonstrate consistent, widespread actual use of their dress in real markets and show concrete evidence that consumers genuinely associate the look with that brand. Courts have also stopped granting “blanket injunctions” that protect entire product lines. Protection now ties to the exact packaging variants actually used. That’s genuine progress, but it remains inconsistent. Different benches emphasize different factors. Some focus on consumer confusion. Others highlight bad faith intent. Still others muddy the waters by conflating trade dress infringement with trademark dilution, concepts courts have never properly separated in Indian law.​

What Comes Next

Here’s the honest truth: India doesn’t need a separate Trade Dress Act. The current framework is flexible enough if courts apply it with genuine care. What we actually need is clarity. Maybe a Supreme Court judgment consolidating the doctrine. Maybe guidelines from the Trademark Registry. Some questions require settling: How much evidence actually proves secondary meaning? When does design become merely functional? How different must a competitor’s look be to avoid legal liability?​

The deeper issue, though, courts need to stop treating aesthetic choices as permanent property rights. A colour scheme shouldn’t become a forty-year monopoly. A bottle shape shouldn’t lock competitors into visual templates controlled by one corporation. Yes, protecting visual identity serves consumers by preventing confusion. But balance matters. Competitors also need breathing room to build their own identity. Markets need design space that remains genuinely competitive, not increasingly colonized by the first movers.

Conclusion

Trade dress protection in India has become quite powerful. Courts built it carefully, case by case, without statutory language, adapting as markets evolved. That flexibility is genuinely valuable. But quietly powerful doctrines need scrutiny. The uncomfortable question we should be asking: Is trade dress actually doing what it claims, protecting consumers from deception, or has it quietly become something else? A mechanism for entrenching market dominance through visual monopoly. That distinction matters. And Indian courts haven’t fully reckoned with it yet.

References

Case Law

1. Seven Towns Ltd. v. Kiddland International Ltd., (2016) 6 SCC 254.
2. M.L. Brothers v. Uma Impact, (2023) 67 PTC 1 (Delhi High Court).
3. Colgate Palmolive Co. v. Anchor Products Ltd., (2002) 5 SCC 746.
4. Cadbury India Ltd. v. Neeraj Products Pvt. Ltd., (1999) 4 SCC 205.
5. ITC Ltd. v. Britannia Industries Ltd., (2005) 30 PTC 541 (Delhi High Court).
6. Ferid Allani v. Union of India, (2005) 30 PTC 265 (Delhi High Court).
7. Castrol India Ltd. v. Petronas Lubricants International Technology SDN BHD, CS(COMM) 1161/2024 (Delhi High Court, 2025).

Statutory Instruments

8. The Trade Marks Act, 1999.
9. The Trade Marks Rules, 2017.

Secondary Sources and Commentary

10. S.S. Rana & Co., “India: Developing Jurisprudence on Trade Dress,” SSRANA Legal Articles (2023).
11. Khurana & Khurana, “Seven Towns v. Kiddland: Delhi High Court on Trade Dress Protection,” Legal Commentary (2016).
12. “Safeguarding Trade Dress in India: Emerging Jurisprudence, Trends and Challenges,” Journal of Intellectual Property Rights and Law 16(1) (2023): 145-172.
13. Lawbhoomi, “Trade Dress Protection and Infringement in India: Doctrine, Functionality and Consumer Confusion,” IP Legal Analysis (2025).
14. “The Emerging Concept of Trade Dress: Does India Require a Change in Legislation?”, IP Law Post (2022).