In today’s competitive market, consumers often recognise a product before they actually read its brand name. A particular colour combination, bottle shape, packaging style, label design, typography or overall appearance can immediately remind a consumer of a particular brand.

This is where the concept of trade dress becomes important.

Trade dress broadly refers to the overall visual appearance or “get-up” of a product or its packaging through which consumers may identify its commercial source. In India, disputes relating to trade dress have increasingly become an important part of trademark infringement and passing-off litigation.

A competitor may not copy a brand name word-for-word and may even use a completely different name. However, if the competitor adopts a combination of visual elements that creates a similar overall commercial impression, questions of trademark infringement, deceptive similarity or passing off may arise.

The Trade Marks Act, 1999 itself adopts a broad definition of the term “mark”, which includes labels, packaging, shapes of goods and combinations of colours. Therefore, trademark protection is not necessarily restricted to the written name of a brand.

What Is Trade Dress?

Trade dress is generally understood as the overall visual presentation of a product, packaging or business that contributes to its identity in the marketplace.

It may include:

Product packaging
Colour combinations
Bottle or container design
Label arrangement
Typography
Graphics and illustrations
Shape of goods or packaging
Overall get-up and presentation

The important aspect of trade dress is that it is usually the combination of different elements that creates the visual identity of a product.

For example, a particular colour by itself may not be distinctive. Similarly, a commonly used bottle shape may not be capable of exclusive ownership. But when a specific colour combination, bottle, label, typography and graphic arrangement are consistently used together by one business, consumers may begin to associate that overall appearance with that business.

That commercial association can become significant in a trademark dispute.

Does Indian Trademark Law Protect Packaging?

Yes, packaging can fall within the scope of trademark protection, subject to the requirements of the law.

Section 2(1)(m) of the Trade Marks Act, 1999 provides a broad definition of “mark”. It includes, among other things, a device, brand, label, name, word, shape of goods or their packaging and combination of colours.

This statutory definition is important because it demonstrates that trademark law is not concerned only with words and logos.

A business may potentially seek protection for distinctive aspects of its commercial presentation where those elements satisfy the requirements of trademark law.

However, this does not mean that a business automatically acquires exclusive rights over every colour, shape or packaging feature it uses.

The question is whether the particular feature, or combination of features, has the required legal distinctiveness and functions as an identifier of commercial origin.

Section 29 and Trademark Infringement

Section 29 of the Trade Marks Act, 1999 deals with trademark infringement.

A registered trademark can be infringed in circumstances involving the use of an identical or deceptively similar mark in the course of trade, subject to the statutory requirements.

Section 29(6) is particularly relevant to product and packaging disputes because it recognises various forms of use, including affixing a mark to goods or their packaging, offering goods for sale under the mark, importing or exporting goods under the mark and using the mark in advertising or business documentation.

Therefore, when analysing packaging-related infringement, the court may need to look beyond the spelling of the brand name and examine how the mark and associated presentation are actually being used in commerce.

Can a Different Brand Name Still Create Trademark Problems?

Yes.

This is one of the most important issues in trade dress disputes.

Imagine that Brand A has developed a recognisable product presentation consisting of a particular:

colour scheme + bottle shape + label design + typography + graphic arrangement.

Brand B uses a completely different name but adopts a remarkably similar combination of these visual features.

Simply pointing out that the two names are different may not necessarily resolve the dispute.

The court may examine whether the overall appearance of Brand B’s product is likely to create confusion, association or a mistaken connection with Brand A.

At the same time, the law does not prevent legitimate competition merely because two products share some ordinary design characteristics.

The real issue is whether the similarities, viewed in their commercial context, have legal significance.

Why the Overall Appearance of a Product Matters

Consumers generally do not examine competing products like lawyers or trademark examiners.

A consumer may see a product for only a few seconds on a retail shelf or while scrolling through an online marketplace.

The consumer may remember:

The colour of the package;
The shape of the bottle;
The placement of the label;
A particular graphic;
The overall design; or
The general visual impression.

This is why courts dealing with trademark similarity have repeatedly considered the perspective of the average consumer with imperfect recollection.

The comparison is therefore not necessarily a microscopic examination of every difference between two products.

The question is what impression the competing marks or packages are likely to create in the mind of the relevant consumer.

The Anti-Dissection Principle in Trademark Law

An important principle in trademark law is the anti-dissection principle.

A composite trademark or trade dress should generally be assessed as a whole rather than being artificially divided into multiple isolated components.

For example, if two packages contain several different visual elements, it may be misleading to examine each element separately and conclude:

“the colour is different,”
“the font is different,”
“the graphic is different,”
“the word is different,”
therefore there can be no similarity.

Consumers may perceive the package as a single overall presentation.

This does not mean that individual elements are irrelevant. Instead, individual elements must be considered in the context of the overall commercial impression.

What Is the Dominant Feature of a Trademark?

While a trademark must generally be considered as a whole, certain elements may have greater importance in determining consumer perception.

These may be referred to as dominant or distinctive features.

For instance, consumers may particularly remember a distinctive:

Logo;
Colour combination;
Graphic;
Bottle shape;
Label arrangement; or
Word element.

The court can consider these features while still examining the mark or packaging in its entirety.

Therefore, the anti-dissection principle does not prevent a court from identifying features that contribute significantly to the overall identity of a product.

Can a Colour Combination Be Protected as a Trademark?

Colour can play an important role in brand identity.

The Trade Marks Act, 1999 expressly includes combination of colours within the definition of a “mark”.

However, not every colour combination automatically receives exclusive trademark protection.

A business relying on colour as part of its trademark identity may need to establish that the relevant colour presentation has sufficient distinctiveness and is capable of identifying the commercial source of the goods.

This distinction is particularly important because many industries commonly use certain colours.

For example, a colour may be used simply because it is attractive or traditionally associated with a particular type of product. That does not automatically mean that consumers associate that colour exclusively with one business.

The legal significance may be stronger where a specific and distinctive colour combination has been consistently used and has acquired recognition in the marketplace.

Can the Shape of a Bottle or Packaging Be Protected?

The shape of a product or its packaging can also be relevant under trademark law.

However, businesses should distinguish between:

functional or commonly used shapes and distinctive shapes capable of identifying a commercial source.

A common bottle design cannot simply be monopolised because one company uses it.

Similarly, ordinary packaging elements that are standard within an industry may not provide a strong basis for exclusive rights.

The focus is therefore on whether the particular shape or combination of visual elements has acquired a distinctive source-identifying function.

Trademark Infringement and Passing Off Are Different

Trade dress disputes can involve both trademark infringement and passing off, but the two are not identical.

Trademark Infringement

Trademark infringement is primarily a statutory remedy arising from rights in a registered trademark.

The proprietor of a registered trademark can rely upon the rights provided under the Trade Marks Act, including Section 29.

Passing Off

Passing off, on the other hand, is concerned with protecting the goodwill and reputation of a business against misrepresentation.

A business may rely upon passing off where it can establish that its particular get-up or presentation has become associated with its goods and that the defendant’s conduct is likely to mislead consumers and cause damage to that goodwill.

This distinction is particularly relevant where the visual identity being relied upon is not itself protected by a registered trademark.

Pernod Ricard and the Supreme Court’s Approach to Trade Dress

The Supreme Court’s decision in Pernod Ricard India Pvt Ltd v Karanveer Singh Chhabra, reported as 2025 INSC 981, is relevant to the discussion of trade dress and overall product presentation.

The dispute involved brands including BLENDERS PRIDE, IMPERIAL BLUE and SEAGRAM’S, as well as a competing product marketed under the name LONDON PRIDE.

The dispute involved allegations relating not merely to word marks but also to elements including colour combination, get-up, bottle and packaging.

The Supreme Court’s reasoning considered principles such as:

Overall comparison;
Anti-dissection;
Dominant features; and
The perspective of an average consumer with imperfect recollection.

The significance of this approach is that a packaging dispute cannot necessarily be resolved simply by identifying differences between individual elements.

The overall commercial impression created by the competing presentation remains an important consideration.

Evidence Is Crucial in Trade Dress Disputes

A business claiming rights in a particular packaging or trade dress should maintain strong documentary evidence.

Useful evidence may include:

Trademark Documents

Trademark applications and registration certificates can establish the statutory rights relied upon by the proprietor.

Old advertisements can help demonstrate how the packaging and visual identity have been presented to consumers.

Invoices and Sales Records

Commercial records may help establish the extent and continuity of use.

Packaging Records

Historical versions of packaging can demonstrate how the product presentation has developed over time.

Product Photographs

Photographs showing the product in actual commercial use can be important, particularly where the dispute concerns the overall get-up.

Marketing and Distribution Material

Catalogues, distributor documents, promotional material and online listings may help establish consumer exposure.

Evidence of Consumer Recognition

Where available, evidence showing that consumers associate a particular presentation with one business can be relevant to questions of distinctiveness and goodwill.

However, mere length of use does not automatically make a packaging design distinctive. The surrounding evidence and the nature of the features must also be considered.

What If the Individual Features Are Common?

This is where trade dress disputes become particularly interesting.

Suppose a product uses a:

Blue bottle;
Rectangular label;
Gold lettering; and
Particular type of graphic.

Each feature may individually be common.

The legal question can nevertheless be different when those features are combined in a particular manner and consistently used by one business.

Consumers may recognise the combination, rather than any individual component.

Therefore, a proprietor’s argument may not necessarily be:

“I own the colour.”

It may instead concern the distinctive overall combination and presentation through which consumers identify the product.

Trade Dress and Consumer Confusion

The ultimate issue in many packaging disputes is how the competing presentation is likely to be perceived by consumers.

The court may consider:

The nature of the goods;
The class of purchasers;
The manner in which the products are purchased;
The degree of attention normally exercised;
The circumstances in which the products are marketed; and
The overall similarity between the competing presentations.

A product bought quickly from a supermarket shelf may involve a different consumer experience from a highly specialised product purchased after extensive research.

Therefore, the same visual similarity may have different significance depending on the nature of the goods and the purchasing environment.

How Businesses Can Protect Their Product Packaging

Businesses investing in brand development should consider intellectual property protection at an early stage.

Some practical steps include:

1. Conduct a proper trademark search:
Before launching a new brand or packaging concept, identify potentially conflicting marks and visual identities.

2. Document the creation of your packaging:
Maintain records showing when the logo, label, packaging and other visual elements were created.

3. Preserve evidence of use:
Keep invoices, advertisements, packaging samples, product photographs and sales records.

4. Protect distinctive elements wherever appropriate:
Depending on the nature of the asset, businesses can explore trademark, copyright, design or other applicable intellectual property protection.

5. Monitor competitors:
Regular monitoring of marketplaces, retail stores, websites and social media can help identify potentially confusingly similar products.

6. Take timely legal action:
If a competitor begins using a potentially infringing package or get-up, the business should obtain appropriate legal advice and assess the available remedies.

Conclusion

Trade dress and trademark infringement in India demonstrate that brand protection can extend beyond a company’s name or logo.

A consumer may recognise a product through its packaging, colour scheme, bottle, label, graphics and overall get-up. Where these elements acquire sufficient distinctiveness and commercial association, they can become important in trademark and passing-off disputes.

However, trademark law does not give businesses an unlimited monopoly over ordinary design elements. A common colour, functional bottle shape or standard packaging feature cannot automatically become exclusive merely because one business uses it.

The real legal inquiry is more nuanced.

What does the overall presentation communicate to the consumer?

Does the visual identity distinguish the claimant’s goods from those of others?

Has the presentation acquired sufficient commercial recognition?

Does the competing product create a likelihood of confusion or deceptive association?

These questions make overall commercial impression, consumer perception, distinctiveness, reputation and evidence of use central to trade dress disputes.

For businesses, the lesson is clear: a brand is not always just the name printed on the product. The visual identity surrounding that name can itself become a valuable commercial asset.

Trade Dress Protection in India: When Does Packaging Become a Trademark?