Protection of Trade Dress under the garb of Trademark Act, 1999: An Analysis with reference to India

Trademarks significantly facilitate the establishment of the reputation and goodwill of a business and suggest a relation between the products or services and their producer. Such reputation and goodwill has been taken undue advantage of through deceptively similar marks and product packaging in recent times, which has necessitated expanding the scope of protection. This has culminated in instances of protection provided to the “get up” or “trade dress “of products such as the unique form of a soft drink bottle, the eccentric ambiance of restaurants, distinctive biscuit packaging, the structure of a barbeque, a fragrance, and even a single colour, provided they are distinctive and non-functional. Trade dress is the commercial look and feel of a product or service that identifies and distinguishes the source of the product or service. It includes the various elements (such as the design and shape of materials) used to package a product or services. For example the shape of Coca-Cola and Voss bottles; the red-sole of a Christian Louboutin shoe; the red tab on Levis jeans. Over decades there has been a transformational shift in the choices of the consumer; today along with the quality, the overall packaging of the product has also significantly affected the buying choices of the consumer. Packaging, color pattern, color combination, shape of the product, texture, design, graphics and illustration which we call as trade dress are protected from being misused by the other parties who intends to imitate the overall look of a product in order to take advantage of its established goodwill and reputation. In India there is no separate provision for protection of trade dress, however, the common law of passing off provides protection of trade dress consisting of shape of goods their packaging and combination of colors etc. which is elucidated in Section 2 (zb) of the Trademarks Act 1999. This paper seeks to examine the scope of trade dress protection in the Indian scenario, its relevance and its validity under the Trade Marks Act, 1999 in light of recent judicial pronouncements.