trade dress

Trade Dress

A. LakshminarayananAdvocate

Trade dress

Trade dress refers to total image of the product.

It encompasses the overall image created by the product or package. It includes features such as size, shape, package, colour or colour combinations, textures, graphics or even particular sales techniques.

It refers to the overall get up of the product.

Meaning

Trademark vs Trade dress

DEFINITION

Trade dress = total image of the product

Includes features such as size, shape, color or color combinations, texture, graphics, even sales techniques and design of product

Elements combine to create the whole visual image presented to customers

Originally limited to product packaging, i.e., product “dressing”.

Section 2 of Indian Trademark Act, 1999. Definition and

interpretation.-

(m) “mark” includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof;

(q) “package” includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper an cork;

Why is “trade dress” important?

Like a trademark, protectable trade dress can convey a trademark-type meaning, such as a familiar taste, a high quality, a good reputation, trusted source.

Trade dress can therefore influence purchasing decisions.

Trade dress can help companies achieve consumer recognition and a “niche” in the marketplace.

Trade dress can provide a competitive edge.

Why is “trade dress” important?

Registering your trade dress prevents other companies from using similar product dressing or packaging. This prevents consumers from confusing your products with those of another products.

Protectable under Trade Dress

The shape and appearance of a product; The shape and appearance of a container; The cover of a book or magazine; The layout and appearance of a business

establishment such as a restaurant; The theme and look of a line of greeting

cards; and The recognizable shape of an automobile.

Un Protectable

(a) the shape of goods which results from the nature of the goods themselves; or(b) the shape of goods which gives substantial value to the goods.

Broader in Scope

Trade dress protection can be both broader than and complementary to copyright, patent and trademark protection.

Colgate Palmolive Company & Another v. Anchor Health and Beauty Care Pvt. Ltd.

2003 (27) PTC 478

Colgate vs Anchor Discussion leads to the most ineluctable conclusion

that the plaintiffs have successfully established a prima facie case for injuncting the defendant from using the colour combination of red and white in that order as trade dress on the container and packaging. As a consequence the application is allowed and defendants are, by way of ad interim injunction, restrained from using the colour combination of red and white in that order on the container/packaging of its goods viz. the "Tooth Powder".

United Distillers Plc v Jagdish Joshi & others(2000)

The plaintiff was the owner of trademark Johnnie Walker for Scotch whisky. The defendants were manufacturers of Johnnie Walker Gutka. The plaintiffs sued the defendants for infringement of trademark and “trade dress.” The court held that the trade dress used by the defendant has a similarity with the trade dress of the plaintiff and had infringed the same.

Thank You

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