(This article is written by Samiksha Tiwari, Renaissance Law College, B.A.LL.B. (Hons.), 9th Semester during internship at LeDroit India)

SCOPE OF ARTICLE

1. Introduction

2. Understanding Trade Dress and the “Look and Feel” of a Product

3. Legal Framework Governing Trade Dress in India

4. Trade Dress and Trademark: The Difference

5. Important Judicial Decisions

6. Colgate Palmolive v. Anchor Health: A Closer Look

7. Recent Developments in Indian Trade Dress Jurisprudence

8. Challenges and Limits of Trade Dress Protection

9. Conclusion

KEYWORDS: Trade Dress; Passing Off; Trademark; Colgate; Anchor; Consumer Confusion

ABSTRACT

In a crowded marketplace, consumers often recognise a product before they consciously read its brand name. Colours, packaging, shape, layout, typography and the overall appearance of a product can create a strong association with a particular business. This visual identity is commonly described as trade dress. Indian law does not create a separate, self-contained statute called “trade dress law”; instead, protection is built through the Trade Marks Act, 1999, the common-law action of passing off, and, where appropriate, copyright and design law.

This article examines how Indian courts have protected distinctive trade dress while trying to prevent unfair monopolisation of ordinary features. Particular attention is given to the well-known Colgate Palmolive v. Anchor Health decision of 2003, where the Delhi High Court examined the effect of a similar red-and-white get-up and packaging. The article also considers later decisions, including recent Supreme Court and Delhi High Court cases, to show how consumer perception, overall similarity, goodwill and likelihood of confusion remain central to the protection of a product’s “look and feel”.

1. INTRODUCTION

Walk through a supermarket and it becomes clear that consumers do not always approach a product by reading its name first. A familiar colour, a particular bottle, a distinctive box, or even the way information is arranged on a package can immediately tell a buyer which brand is being looked at. This is one reason why companies spend considerable time and money creating a consistent visual identity.

That visual identity is what trade dress broadly seeks to protect. In simple terms, trade dress refers to the overall appearance or “get-up” by which a product or business is presented to consumers. It may include packaging, colour combinations, shape, graphics, layout, labels, typography and other visual features. The important point is that the law does not protect a look merely because it is attractive. Protection becomes relevant when the appearance has become distinctive enough to identify a particular commercial source and another trader adopts a deceptively similar presentation so as to cause confusion or take unfair advantage of the goodwill attached to it.

India does not have a separate legislation titled “Trade Dress Act”. Its protection has developed mainly through the law of passing off and the statutory framework of the Trade Marks Act, 1999. Section 2(zb) expressly recognises that a trade mark may include the shape of goods, their packaging and combinations of colours. Section 2(m) also gives a broad definition of “mark”. These provisions make it possible, in appropriate cases, to protect elements that go beyond a conventional word or logo.

The subject is particularly interesting because there is a fine line between protecting a brand’s identity and giving a business a monopoly over ordinary features such as a common colour or a basic package shape. Courts therefore generally look at the overall impression created by the competing products and ask whether the defendant’s presentation is likely to make consumers believe that the goods come from, or are connected with, the plaintiff.

The classic Indian illustration is Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd., decided by the Delhi High Court in 2003. The case demonstrates why a different brand name does not always end the inquiry. Where the overall packaging, colour scheme and get-up are sufficiently similar, the court may consider the possibility of passing off from the viewpoint of the ordinary consumer.

2. UNDERSTANDING TRADE DRESS AND THE “LOOK AND FEEL” OF A PRODUCT

Trade dress is best understood through the idea of overall commercial appearance. Imagine a customer seeing two products on a shelf without spending much time comparing their names. If the colours, packaging, arrangement and visual presentation of one product strongly remind the customer of another, the similarity may become legally relevant.

Trade dress can therefore cover several elements working together. These may include the shape of a container, the combination and arrangement of colours, a distinctive label, the placement of a logo, graphics, borders, patterns, fonts, and the general layout of a package. In a service business, the concept can extend to the visual presentation of the premises or the manner in which services are presented, although the exact legal analysis will depend on the facts.

A useful distinction is between an individual feature and the overall get-up. A business cannot ordinarily claim exclusive ownership over every ordinary colour, geometric shape or packaging element merely because it uses it. Red, blue, green, a rectangular box, or a particular type of bottle may be common in an industry. What may become protectable is the particular combination and arrangement of such elements when consumers have come to associate that combination with one source.

This is where the concept of “secondary meaning” or acquired distinctiveness becomes important. A feature that was initially ordinary can, through long and extensive use, advertising and consumer recognition, acquire a source-identifying function. At that point, the feature may no longer be viewed simply as decoration. It may become part of the brand’s identity.

The consumer’s perspective is central. Courts do not normally compare packages as if they were examining two documents in a laboratory. They consider the impression likely to be created in the mind of an average consumer with imperfect recollection. This is especially significant in fast-moving consumer goods, where purchases are often made quickly and where the buyer may not consciously analyse every part of the package.

3. LEGAL FRAMEWORK GOVERNING TRADE DRESS IN INDIA

The principal statutory foundation is the Trade Marks Act, 1999. Section 2(zb) defines a “trade mark” broadly enough to include the shape of goods, their packaging and combinations of colours, provided the requirements of the Act are satisfied. Section 2(m) similarly gives an inclusive definition of “mark”. These provisions are important because they move trademark law beyond the traditional idea that only words and logos can function as marks.

Section 27(2) preserves the common-law remedy of passing off. This is particularly important for trade dress because a plaintiff may be able to protect a distinctive get-up even where the precise visual feature is not registered as a trademark. Passing off is fundamentally concerned with protecting goodwill from misrepresentation. The classic elements are generally described as goodwill or reputation, misrepresentation by the defendant, and damage or likelihood of damage.

Sections 28 and 29 of the Trade Marks Act provide statutory rights and infringement remedies for registered marks. In a trade-dress dispute, the plaintiff may rely on a registered packaging shape, colour combination or other protectable mark where registration has been obtained. At the same time, the plaintiff may plead passing off where the dispute concerns the broader commercial get-up.

Other areas of intellectual property law can also overlap. A particular artistic label or graphic may raise copyright questions. A novel visual shape may, in an appropriate case, fall within design law. However, each statute has its own requirements. Trade dress protection should therefore not be treated as a shortcut for obtaining perpetual control over every visual aspect of a product.

The underlying policy is balance. The law wants to prevent one trader from deliberately riding on another trader’s reputation, but it also wants to keep common design elements available to competitors. Courts therefore examine distinctiveness, the extent of use, consumer perception, the similarity of the competing get-ups, the nature of the goods and the likelihood of confusion.

4. TRADE DRESS AND TRADEMARK: THE DIFFERENCE

Trademark and trade dress overlap, but they are not identical concepts. A trademark may be a word such as “Colgate”, a logo, a symbol, a sound, a shape or another source-identifying sign. Trade dress is broader in the sense that it looks at the visual presentation of the product or business as a whole.

The distinction becomes especially important in passing-off litigation. If two products carry completely different brand names, the court may still ask whether their overall presentation is so similar that consumers could believe that the products are connected. This is exactly why the Colgate–Anchor dispute became significant.

At the same time, the existence of a different brand name is not irrelevant. A prominent and clearly different brand name may reduce the likelihood of confusion. The question is one of overall assessment rather than a mechanical rule. In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000), the Supreme Court discussed the difference between infringement and passing off and recognised that get-up and trade dress can have particular significance in a passing-off action.

This explains why trade-dress disputes are fact-sensitive. A court may protect a package in one case but refuse protection in another even though both involve colour similarities. The reason may be differences in the overall get-up, lack of acquired distinctiveness, widespread third-party use, or insufficient evidence of consumer confusion.

5. IMPORTANT JUDICIAL DECISIONS

Indian courts have gradually developed the principles governing trade dress through trademark and passing-off cases.

In Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. (2001), the Supreme Court emphasised that deceptive similarity has to be judged from the perspective of the relevant consumer and identified several factors that may be relevant, including the nature of the marks, the degree of resemblance, the nature of the goods, the class of purchasers, the mode of purchase and other surrounding circumstances. Although the dispute concerned medicinal products, its consumer-focused approach is highly relevant to trade-dress disputes.

In S.M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000), the Supreme Court explained that the role of get-up and trade dress differs in infringement and passing-off actions. In a passing-off claim, additions, get-up and trade dress can be relevant to distinguish the defendant’s goods from those of the plaintiff. This reinforces the idea that passing off is concerned with the total commercial impression and possible deception.

In Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. (2002), the Supreme Court dealt with the importance of goodwill and deceptive similarity in passing off. The decision is useful for understanding why the law protects commercial reputation even apart from the narrower statutory rights attached to a registered mark.

The most direct Indian authority for the subject, however, is Colgate Palmolive Company v. Anchor Health and Beauty Care Pvt. Ltd. (2003). The Delhi High Court considered the red-and-white colour scheme and the overall packaging of Colgate tooth powder alongside Anchor’s product. The Court found a prima facie case for restraining the defendant from using the disputed red-and-white presentation in the particular arrangement and packaging.

The Court’s reasoning was significant because the words “Colgate” and “Anchor” were plainly different. The Court nevertheless focused on the possibility that consumers who relied on the visual appearance of the package could be confused. The judgment therefore remains an important illustration of the proposition that passing off is not limited to copying a brand name.

The modern cases show that the principle continues to develop. In Sunshine Teahouse Ltd. v. Grey Mantra Solutions Pvt. Ltd. (2023), the Delhi High Court dealt with tea products whose packaging substantially copied distinctive elements of the plaintiff’s packaging. The Court restrained fresh manufacture in the impugned trade dress, showing that packaging similarity can remain important in online as well as offline markets.

In G.D. Pharmaceuticals Pvt. Ltd. v. Cento Products (India) (2024), the Delhi High Court recognised the strong reputation associated with Boroline and directed the defendant to alter a deceptively similar trade dress. The case is a useful modern illustration of how long-standing packaging features can contribute to brand recognition.

In Pernod Ricard India Pvt. Ltd. v. Karanveer Singh Chhabra (2025), the Supreme Court considered allegations involving the mark “London Pride” and similarities with the plaintiff’s “Blenders Pride” and “Imperial Blue” presentation. The judgment discusses principles including similarity, distinctiveness, the anti-dissection approach and the relevance of colour scheme and trade dress. The decision is particularly useful because it shows that trade-dress analysis continues to be part of high-level trademark jurisprudence rather than being confined to older cases.

More recently, Emami Limited v. Dabur India Limited, decided by the Delhi High Court on 31 January 2026, again demonstrates the importance of overall get-up. The Court observed that even where individual components of a trade dress are common in the trade, the overall combination can possess distinctiveness. On the facts before it, the Court found a prima facie case of passing off and restrained the defendant from using the deceptively similar trade dress. This is an important reminder that trade dress is not assessed by dissecting every element separately; the combination and overall consumer impression matter.

6. COLGATE PALMOLIVE v. ANCHOR HEALTH: A CLOSER LOOK

The Colgate–Anchor dispute is perhaps the easiest way to understand the practical meaning of trade dress in India. Colgate had used a distinctive red-and-white presentation for its tooth powder for decades. The packaging had a particular arrangement in which roughly one-third of the upper portion was red and two-thirds was white, along with a distinctive container shape and other visual features.

Anchor sold its tooth powder under the clearly different word mark “ANCHOR”, but the plaintiffs alleged that the defendant had adopted a substantially similar get-up and colour arrangement. Colgate argued that consumers had come to associate the overall presentation with its products and that the similarity could result in passing off.

The defendant raised an obvious objection: no one could own the colour red and white as such. The Court accepted the basic proposition that a party cannot simply monopolise a colour. However, that did not end the case. The relevant question was whether the particular combination, proportion, arrangement, packaging and overall get-up had acquired distinctiveness and whether its substantial reproduction was likely to confuse consumers.

On 29 October 2003, Justice J.D. Kapoor of the Delhi High Court granted an interim injunction restraining Anchor from using the red-and-white colour combination in the specified order on the container and packaging of its tooth powder. The judgment stressed the importance of looking at the product from the perspective of ordinary, unwary consumers rather than only from the perspective of a highly attentive buyer.

One of the strongest features of the decision is its focus on overall impression. The Court did not treat the word marks in isolation. It recognised that consumers may identify products by their visual appearance, particularly where the purchasing decision is quick and the buyer may not be reading every word on the package.

The case also shows why evidence matters. Colgate relied on long use, market reputation, the distinctive packaging and evidence suggesting that the get-up had become associated with its products. A trade-dress claim becomes much stronger when a plaintiff can demonstrate actual consumer recognition rather than merely asserting that its packaging is attractive.

The decision should not, however, be read as saying that every similar colour combination automatically amounts to passing off. The protection was connected to the particular combination and presentation, together with the reputation and consumer association established on the facts. A later court may reach a different result if the competing products have sufficiently different overall appearances or if the plaintiff cannot establish distinctiveness.

7. RECENT DEVELOPMENTS IN INDIAN TRADE DRESS JURISPRUDENCE

Recent decisions show that trade dress has become increasingly important in disputes involving consumer goods, online marketplaces and highly visual branding.

Online commerce has changed the way consumers encounter products. A customer may first see a small product thumbnail rather than a physical package. This can make colour, layout and visual presentation even more significant. In the Chaayos-related litigation in 2023, the Delhi High Court noted the role of copied online listings and packaging in creating the possibility of point-of-sale confusion. The case illustrates how traditional passing-off principles can operate in a digital marketplace.

The Supreme Court’s 2025 decision in Pernod Ricard also demonstrates a more structured approach to similarity. The Court considered the overall context, the competing marks and trade dress, and principles such as anti-dissection. This is important because an over-fragmented analysis can miss what a consumer actually sees.

Another useful development is the recognition that common elements do not necessarily destroy a trade-dress claim. The 2026 Emami decision shows that the overall combination may still be distinctive even when individual colours, shapes or design elements are not unique. This is commercially sensible: branding often works through a combination of ordinary elements rather than one completely original feature.

At the same time, courts have also refused protection where the plaintiff cannot show sufficient distinctiveness or where the competing get-ups contain meaningful differences. In other words, trade dress is not a right to control a “style” in the abstract. The plaintiff must connect the particular appearance to its goodwill and show why the defendant’s presentation crosses the line into deception or unfair appropriation.

8. CHALLENGES AND LIMITS OF TRADE DRESS PROTECTION

The biggest difficulty in trade-dress cases is deciding where protection should stop. If the law becomes too generous, businesses could claim exclusive rights over ordinary colours, common bottle shapes or standard packaging conventions. That would make competition harder and could ultimately hurt consumers.

The first limitation is distinctiveness. A plaintiff must show that the claimed get-up is capable of identifying its goods or has acquired such an association through use. A feature that is merely functional, customary or common to the industry is less likely to receive broad protection.

The second limitation is the need to consider the whole market. If many competitors use similar colours and layouts, it becomes difficult to say that consumers associate the feature exclusively with one business. Evidence of third-party use can therefore be important, although the mere existence of a few small infringers does not necessarily defeat a genuine passing-off claim.

The third challenge is the difference between inspiration and imitation. Modern packaging naturally follows trends. Two companies may independently use similar minimalist designs, pastel colours or particular bottle shapes. Courts therefore have to distinguish ordinary market trends from deliberate copying that is likely to exploit another trader’s reputation.

Another challenge is enforcement against online sellers. A copied package can be changed quickly, sold through multiple platforms and marketed through small images. This makes evidence collection and timely interim relief increasingly important.

Finally, trade dress should not become a substitute for registration. Businesses with valuable packaging or distinctive visual features should consider whether those features can be protected through trademark, design or copyright law, depending on their nature. Registration is not always necessary for a passing-off action, but a properly planned intellectual-property portfolio can make enforcement more predictable.

9. CONCLUSION

Trade dress protection is ultimately about something simple: the law recognises that consumers can identify a business by more than its name. A product’s colours, packaging, shape, graphics and overall appearance can become part of its commercial identity. When another trader copies that identity closely enough to create confusion or unfairly benefit from the reputation attached to it, passing off law can provide a remedy.

The Colgate Palmolive v. Anchor Health decision of 2003 remains a landmark illustration because it made clear that different word marks do not automatically eliminate a trade-dress problem. The court looked beyond the names “Colgate” and “Anchor” and considered the overall visual impression of the products. Later decisions, including the 2024 Boroline matter, the 2025 Pernod Ricard judgment and the 2026 Emami decision, show that the basic principle remains relevant.

At the same time, protection must remain carefully limited. Businesses should not be allowed to monopolise common colours, ordinary shapes or functional packaging merely by calling them trade dress. The real question is whether the particular get-up has acquired distinctiveness and whether the defendant’s overall presentation is likely to mislead consumers or appropriate the plaintiff’s goodwill.

In the end, trade dress law tries to protect two things at once: the investment a business makes in building a recognisable identity and the freedom of competitors to participate fairly in the market. The strongest protection therefore comes not from claiming ownership over a single colour or design element, but from proving that the combination has become a genuine badge of origin in the eyes of consumers.