It is very difficult even for successful business owners to create a long-lasting impact in the market and in the minds of customers, much like Tata, Reliance etc. Having a successful business model does not guarantee instant success and many-a-times businesses fail in the long run as they are unable to create a brand image with the customers.
Visual perception plays a very important role in enabling the customers to form an association of a product with a particular source and this is where the importance of a trade dress comes into play. Trade dress refers to aesthetic elements that provide legal protection for a brand’s identity. It includes features such as size, shape, package, colour or colour combinations, textures, graphics etc. Simply put, it refers to the overall get up of the product. For example, Coca-Cola’s bottle shape is a part of its trade dress.
Even though there is no separate provision which specifically deals with ‘Trade Dress’, in the Indian Trademark Act, 1999, it is offered protection under the common law of passing off. The main objective behind providing protection to trade dress is to prevent the untrained eyes of the customers from getting deceived who might purchase the deceptively similar product with a similar packaging instead of the original product.
To be granted protection to a business trade dress, the owner has to prove the following:-
- DISTINCTIVENESS: If there is a distinctly pronounced pattern or mixture of characteristics either inherently distinctive or possessing acquired distinctiveness by secondary meaning, the applicant possesses a trade dress that can be accorded protection.
- NON-FUNCTIONALITY: The owner of the trade dress is further required to prove that the infringed features of his trade dress are not functional in nature. This essentially means they must not be vital to the use or purpose of the product and must not be a factor influencing the price or quality of the product.
- LIKELIHOOD OF CONFUSION: The third factor that can influence protection of a trade dress is whether the accused trade dress may create a likelihood of confusion regarding the origin or affiliation of the trade mark in the minds of consumers, with the effect that they may mistake the defendant’s goods as those of the plaintiff.
In the current competitive arena, it is quintessential that brands adopt competitive strategies through a protectable trade dress in order to protect their products and the unwary customer for mistaking a similar product for theirs.
You can either this rarely exploited area of branding, which will not only save them money but also increase their customer base and recognition, ultimately earning them huge profits; or you can keep on working hard to earn reputation in the market by doling out money again and again.
To know more, feel free to call us or connect with us through mail.