What is Trade Dress Protection?

Introduction

“Product packaging” or the sheer look of an invention at present has become just as essential as the product itself. A trade dress is the graphic appearance of an article or its bundling which frames a significant segment as the basis of the product and is different from the conventional brand name law that secures words or logo, trade dress law ensures the complete package and design of the product.

By definition, it denotes how brand owners pick to dress their final product before it hits the market by controlling design elements like their product’s size, shape, and color. As brands understand that these elements help buyers distinguish and perceive their number one brands from an endless supply of nearly identical items, they invest very significant time and energy in conceptualizing them. For example; while browsing for a shampoo, very often you’d be able to visually categorize what you’re looking for by its shape, size, and color.

Trade Dress Protection in India

There aren’t many differences between laws governing trade dress in these two countries. The common law doctrine that prohibits ‘unfair compensation’ can be traced back to both countries’ trade dress protection. Although trade dress originates from the U.S., similar laws exist in other countries, including India.

Dealing with trade dress under its trademark legislation Indian law doesn’t include a different section like U.S. law. However, under Indian trademark laws, trade dress has been legally recognized since its enactment in September 2003, under the Trademark Act of 1999. Trade dress is recognized by the amended Trademarks Act, 1999 under Section 2(1) (zb), which notes that trademarks can include the shape, packaging, coloration, and other features of a product.

Furthermore, Section 2(1)(m) of the Act specifies what a mark is, a definition which includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. According to Section 2(1)(q) of the Act, the term “package” includes box, any case, container, folder, covering, vessel, bottle, casket, wrapper, band, label, frame, ticket, reel, capsule, stopper, lid, and cork.

The Seven Towns v. Kiddiland Case

Seven Towns Ltd & Anr vs M/S Kiddiland & Anr is a 2016 Indian Case Law on Trademarks, which can provide some insight into how things work in India with respect to Trade Dress. The owners of Seven Towns Ltd were the worldwide owners of the trademark RUBIK along with the trade dress associated with Rubik’s Cube. Seven Towns claimed that Kiddiland’s cube-like toy was using the same packaging and appearance of the Rubik’s Cube. Seven Towns did not claim rights over the cube per se, but the expression of the cube i.e. a cube comprised of 36 smaller cubes, 3x3x3 cube with black as its base and green, red, blue, yellow, white and orange being the different colors on each surface of the cube.

The court found in favour of the plaintiff, Seven Towns, noting a number of points. First of all, if two products were to be compared for trade dress considerations, the general look, appearance, and general idea or impression left in the minds of the consumers must be considered. Prima facie, the plaintiffs made a compelling case in front of the court, and they were in the best position for an argument for the balance of convenience. Justice Singh also stated that monopoly over a single colour can surely not be enjoyed but that is certainly not the case here as it is the combination of colours that the plaintiff allege as infringed and is protected as their trademark. There exists considerable goodwill on the side of the plaintiff and they do have a huge reputation in the market, thus ensuring that the mark is well known under s. 11(6) of the Trade Marks Act.

Conclusion

Indian Intellectual property law is still under development in many sectors, and the usage of novel forms of trademarks is one of those sectors. While the law does allow for trademarking of elements such as sounds, scents, and configurations, the potential of these have not yet been fully considered by players in the Indian market. Cases like the discussed Seven Towns v. Kiddiland helps shine a better perspective on these novel trademarks, clarifying the law and allowing more people to seek similar protections.

Author: Ishant Singh, Legal Intern at PA Legal.

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