The Role Of Trade Dress In Preventing Consumer Deception In The Food And Beverage Industry
Author: LawSphereX
Category: Consumer Law
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THE ROLE OF TRADE DRESS IN PREVENTING
CONSUMER DECEPTION IN THE FOOD AND BEVERAGE
INDUSTRY
Mansi Tiwari, Gautam Buddha University, Greater Noida, Uttar Pradesh Mr. Sagar, Gautam Buddha University, Greater Noida, Uttar Pradesh
ABSTRACT
Trade dress, encompassing the overall look and feel of a product's packaging and presentation, plays a crucial role in brand recognition and consumer perception. In the highly competitive food and beverage industry, where visual significantly influence purchasing decisions, trade dress protection is essential for preventing consumer deception and unfair competition. This paper examines the legal framework surrounding trade dress, its application in food and beverage cases, and notable case studies that illustrate its enforcement. The research highlights the challenges in proving trade dress infringement and suggests policy improvements to enhance consumer protection. Keywords: Trade Dress, Trademark Law, Consumer Deception
1. Introduction
The buying choice of the consumers these days is not only influenced by the brand names used on the product but also by the external overall visual look or the get up, the appearance and the sensation of the product and package. Therefore, the trade dress has become a vital element in the product differentiation and brand recognition. Conventionally, trade dress was just perceived as labels, wrappers, or containers which were employed in packaging of a product. That is, it indicated the manner in which the product was "dressed up" to enter the marketplace. Examples, packaging, label on the product, display cards, etc. This amalgamation of items produced an image to the customers and if utilized in such a way as to represent the origin of the product, may gain exclusive legal rights as a form of trademark.
But the concept of trade dress has widened over time and now it refers to the overall external visual look of the product that is developed by a combination of all the features and a totality of all the elements in which a product or service is packaged or presented to the customers for sale. Therefore, trade dress currently includes the overall appearance of the product and packaging since in some instances it can even consist of sales practices. Thus, in effect, trade dress is any firm's total appearance in a marketplace. Consumer misbranding in the food and beverages sector is becoming more prevalent, with firms frequently getting into battles over misbranding, packaging, and product design. 1 Trade dress, being a core element of intellectual property law, is a protection against deception.
This article explores how trade dress operates to protect consumers' interests as well as advance fair competition within the food and beverage industry.
2. Statement of Problem
In the highly competitive food and beverage industry, brands rely heavily on trade dress—the distinctive visual appearance of their packaging, product design, and overall presentation—to establish brand identity and consumer trust. However, the increasing prevalence of misleading packaging, branding, and deceptive marketing strategies has led to significant consumer confusion and deception. Despite existing trademark and consumer protection laws, trade dress infringement continues to be a growing concern. This study seeks to examine the role of trade dress in preventing consumer deception in the food and beverage industry. It will explore the extent of trade dress violations, their impact on consumer behavior, and the legal mechanisms 1 Arpana Tyagi, "Viewing Trade Dress Protection from the lens of Indian legal framework” 1 NLUA Journal of Intellectual Property Rights 87 (2022)
available to protect brand identity. By assessing landmark cases, consumer perceptions, and regulatory frameworks, this research aims to provide insights into strengthening trade dress protection to enhance consumer trust and market fairness.
3. Literature review
The current subject matter of the study falls within the ambit of Trademark Act, 1999 and is also rooted in principles of 'honest trading practices' enriched in Paris Conventions and affirmed under TRIPS convention. With this in mind, for maintaining a complete approach, researcher has gone through all these statues along with other legislations, books, articles, reports, sanctioned websites on the topic.
For developing the research problem and for highlighting the significance of the current study brief discussion of the studies having direct or indirect relevance to the current study has been presented in review of literature which are: The author P Narayanan in his book entitled "Law of Trade Marks and Passing off" dealing with the Trade Marks Act of 1999 enabling projection of Indian products and services comprehensive discussion has been presented on the necessary features of Unfair Competition Law, Trade Dress. Law of Trademarks and design by S. R. Myneni has been referred to for study. Arpana Tyagi (July 2022) in her article, “Viewing Trade Dress Protection from the lens of Indian Legal Framework” discusses about the trade dress protections and rights which has been used for this study.
Thus, data collection was extensively through off-line (library) and online (e-library) resources like Manupatra, Bar and Bench, Indian Express, SCC online.
4. Objectives of study
i. To explore the role of trade dress in brand differentiation and consumer recognition in the food and beverage industry. ii. To analyse how trade dress infringement leads to consumer deception. iii. To identify common misleading branding strategies in the industry. iv. To review key legal cases and their impact on trade dress enforcement. v. To propose measures for strengthening trade dress protection against consumer deception.
5. Research Questions
i. What is the role of trade dress in brand differentiation and consumer recognition in the
food and beverage industry? ii. How does trade dress infringement contribute to consumer deception in this industry? iii. What are the most common deceptive trade dress strategies used in the food and beverage sector?
6. Research Methodology
The study of present topic is based on doctrinal method. Analysis of current statutory provisions and case laws has been used to conduct the study on the legal propositions. The study also takes help from books, articles, newspaper, and journals. Use of internet has also been made by the researcher for gathering the relevant information relating to the research. The researcher has followed ILI style of citation for footnotes and references.
7. Trade dress
Black’s Law Dictionary defines trade dress as “visual impression that is made by totality of all elements used to package or present a service or good for sale giving it a recognizable look. ” Trade dress refers to the overall appearance of a product or service that suggests or points out the source of the product or service and separates it from others. For instance, it could be the product's design or structure, goods packaging, or interior, etc. Trade dress protection aims to shield consumers from product packaging or look that is meant to mimic other products, so as to avoid a consumer purchasing one product under the impression that it is another.
For example, the unique shape of Hershey's Kisses chocolates, Cadbury's distinctive purple and gold color scheme on its packaging, the golden wrapper of Ferrero Rocher chocolates, the distinctive shape coupled with the red color of the Coca-Cola bottle, etc. The purpose of trade dress is not to mislead the consumers by having the identical look of a product. This also impacts the company who originally makes the product making an unjust competition in the market. To be accepted, a trade dress must be distinctive and unique. Even the colors in the product can be differentiated. When the market contains products with similar or identical features, the consumers are baffled in choosing which product is best and which one they require.
The majority of the products entice consumers with quality and looks so the manufacturers had to advance the quality and look of their products so that they won't
face unfair competition in the market. Thus, trade dress also matters along with the trademark for a product. Elements of Trade Dress
1. Visual Appeal: It includes colors, shapes, sizes, textures and graphics.
2. Distinctiveness: It must be inherently distinctive or have acquired distinctiveness
through use.
3. Non-functionality: It should not serve a utilitarian purpose but rather act as a source
identifier.
7.1 Emergence of Trade Dress
The Trade dress has been developed through the US laws popularly known as The Lanham Act. 2 But its origin traces to the common law doctrine of passing off which does not permit unfair competition. Passing off is a common law relief primarily utilized in protecting unregistered trademarks and unregistered trade dress. That is, there could be a scenario where a trader has not registered his trade dress but along with the time, he has gained substantial recognition in the context of a specific good or service under his unregistered trade dress.
Now, if another trader attempts to utilize an identical or similar trade dress for his own service or product, because of the law of passing off he will be prohibited from doing so and he will not be permitted to pass off or mislead his own goods and services as the goods and services of the earlier trader by utilizing the similar or the identical trade dress in relation to his own goods and services. 3 The remedy is founded on the basic principle that no one has the right to pass off someone else's goods or services as his own goods and services. Therefore, the law of passing off safeguards the goodwill and the reputation which has been established through long usage of an unregistered trade dress from being invaded by other traders.
7.2 Trade Dress in India
As compared to United States that recognizes the notion of trade dress under Section 43(a) of 2 The Lanham Act, 1946, US, available at: http://itlaw.wikia.com/wiki/Section_43(a)_of_the_Lanham_Act (last visited on March 25, 2025).
3 Supra note 1 at 2
Lanham Act, in India there is no distinctive provision for protection of trade dress under current trademark legislation. In India the establishment of the notion of trade dress occurred subsequent to the substitution of Trade and Merchandise Marks Act, 1958 by the revised Indian Trademark Act, 1999 with the following definitions: Firstly, Section 2(1)(zb) states that “"trade mark" means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include shape of goods, their packaging and combination of colors. ”4 Secondly, Section 2(1)(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.
”5 Thirdly, Section 2(1)(q) “"package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork. ”6 These three definitions read together have been used to describe what is understood as a Trade Dress. This statutory basis is further reinforced by Section 10 of the Trademarks Act, 1999 which provides that a trademark may be registered with limitations for colour and if a trademark is registered without limitation of colour, it shall be deemed to be registered for all colours. Hence, by looking at the new definition of trademark, mark and package it can be said that even the Indian law comprises all the elements of the trade dress as under the US law. 7 The concept of trade dress is acknowledged in various judgments by courts in India.
The landmark judgement in this regard is that of Colgate Palmolive Co. v. Anchor Health and Beauty Care8 where the court while deciding a dispute regarding colours of a toothpaste, addressed the issue by referring to the identity of trade dress and held, “trade dress is the soul for identification of the goods as to its source and origin and as such is liable to cause confusion in the minds of unwary customers, particularly those who have been using the product over a long period. In other words, if the first glance of the article without going into the minute details
4 The Trade Marks Act,1999 (Act 47 of 1999), s. 2(1)(zb)
5 Id., s. 2(1)(m)
6 Id., s. 2(1)(q)
7 R. Mohanty, “Trade Dress Protection: An Indian Perspective” 45-49 (2021)
8 2003 VIII AD Delhi 228, 108 (2003) DLT 51, 2003 (27) PTC 478 Del, 2004 (1) RAJ 214
of the colour combination, getup or lay out appearing on the container and packaging gives the impression as to deceptive or near similarities in respect of these ingredients, it is a case of confusion and amounts to passing off one’s own goods as those of the other with a view to encash upon the goodwill and reputation of the latter.”9 In the case of Cadbury India Limited and Ors. Vs. Neeraj Food Products10 the Cadbury India Limited claimed that Neeraj Food Products' "James Bond" product and its packaging were deceptively similar to their "Cadbury Gems" product and packaging, leading to a potential for consumer confusion and trademark infringement. The High Court of Delhi restrained Neeraj Food Products from using trademarks “JAMES BOND” and packaging that was deemed to be deceptively similar to that of Cadbury.
8. Trade Dress in the Food and Beverage Industry
Food and beverage are a highly competitive market where brand identity and visual appeal play key roles in the consumer's decision to make a purchase. The food industry is that competitive that manufacturers and retailers have to discover names that are memorable enough to be recalled by consumers who are presented with numerous options. Manufacturers and retailers need to find names and arrangements that customers will remember amidst several choices. Food companies often make use of distinctive packaging that is extremely suggestive.11
8.1 Elements of Trade Dress in Food and Beverage
1. Packaging of Product
Shape and Size: The shape of a product has been seen for consumer products only. For a shape to be a trade dress, it must be graphically delineable, able to differentiate between parties' products or services, non-functional, and not creating significant value for goods. The visual characteristics of the shape of a product are important for drawing consumer attention as well as for facilitating instant product recognition. Shapes with distinctive features are eligible for protection, particularly serving as a primary identifier for visually impaired consumers. Enterprises like Toblerone and Coca-Cola actively seek registration for their product shapes 9 Colgate Palmolive Co. v. Anchor Health and Beauty Care2003 VIII AD Delhi 228, 108 (2003) DLT 51, 2003 (27) PTC 478 Del, 2004 (1) RAJ 214
10 (142 (2007) Dlt 724, MIPR 2007 (2) 269, 2007 (35) PTC 95 Del)
11 Vibhum Krishan Tripathi, “Trade Dress vs Trademark: The Legal and Branding Power of Packaging in the Food Industry” Lawyers Club India (2025)
and packaging to safeguard against unauthorized replication. Color: In trade dress, colour has a subtle but significant impact, conveying to consumers a multitude of subliminal messages and being essential to brand recognition. More than just artistic flourishes, the colours used for packaging, product design, and brand imagery are crucial expressive components that distinguish a product and give the customer experience a deeper emotional connection.12 For example, Cadbury chocolate is packaged in blue or purple, and Maggie noodles are packed in yellow. Graphics and Layout: The arrangement of text, images, and logos on packaging contributes to the overall trade dress. Material and Texture: The tactile experience of packaging (e.g., matte vs. glossy finishes) can also be a factor.
2. Product shape and presentation
Certain food and beverage products have distinctive shapes that have become associated with specific brands (e.g., unique candy shapes, pasta designs). However, the shape must be nonfunctional and primarily serve to identify the source. Restaurants and food brands often develop a signature way of presenting their dishes. For instance, a specific arrangement of ingredients, a unique serving dish, or a characteristic garnish could be protected under trade dress.
3. Restaurant and store design
The interior and exterior design of food establishments can be a part of trade dress. This includes elements like seating arrangements, color schemes, staff uniform, menu design, lighting, and decor. For example, McDonald’s has protected its restaurant layout and design elements as trade dress.
4. Labelling
The style and placement of labels, including fonts, logos, and product descriptions, contribute
12 Id.at 11
to brand recognition. The overall impression created by the label is a component of trade dress.
9. Trade Dress and Consumer Deception
Consumer deception occurs when a business misleads customers into believing a product is associated with another brand by copying its trade dress. This can involve misrepresentation of products, false advertising, misleading packaging, or hidden fees, ultimately harming consumers by leading them to purchase products or services under false pretences. This deception can take different forms:
1. Lookalike Packaging – Any person copies the color scheme, font, or design of a
wellknown brand’s packaging to mislead buyers. Example: A local chocolate bar brand using red and gold packaging similar to KitKat, making consumers think it’s the same or related product.
2. Similar Product Design – Some brands imitate the shape or appearance of a product,
creating confusion. Example: A soda company producing bottles shaped almost exactly like Coca-Cola’s iconic contour bottle, making consumers associate it with Coca-Cola.
3. Restaurant and Store Design Copying – A business replicates the interior layout, décor,
or menu style of a well-known restaurant to attract its customers. Example: A coffee shop using a green logo, similar interior colors, and a mermaid-like design, making consumers associate it with Starbucks.
4. Mimicking Logo Elements – Using similar fonts, colors, or symbols that resemble a
famous brand can create false brand association. Example: A fast-food brand designing its logo with golden arches, similar to McDonald's.
9.1 Key Aspects of Consumer Deception
1. Confusion of Origin: This is the most common form of deception, where consumers are
misled about the source of the product. They may believe that the imitation is made by
the same company as the original.
2. Confusion of Affiliation: In some cases, consumers may not believe that the imitation
is the exact same product, but they may believe that it is affiliated with or endorsed by the original brand.
3. Dilution of Brand Equity: Even if consumers are not confused about the source, the
imitation can still dilute the brand's equity by diminishing the distinctiveness and value of its trade dress.
9.2 Impact of Consumer Deception
1. Loss of Consumer Trust: Buyers feel misled and may stop purchasing from both the
original and the deceptive brand.
2. Brand Dilution: If multiple similar-looking products enter the market, the original brand
loses its uniqueness and reputation.
3. Legal Consequences: Companies engaging in trade dress infringement can face
lawsuits and financial penalties.
9.3 Preventing Consumer Deception
Trade dress plays a vital role in preventing consumer deception by:
1. Reducing Confusion: Distinctive trade dress helps consumers differentiate between
competing products, reducing the likelihood of purchasing a counterfeit or imitation product.
2. Maintaining Brand Integrity: Protecting trade dress ensures that consumers associate
specific visual cues with a particular brand, maintaining the brand's reputation and goodwill.
3. Preventing Passing off: Trade dress protection prevents competitors from "passing off"
their products as those of another brand, which can harm both consumers and the original brand owner.
4. Ensuring Product Consistency: Maintaining consistent trade dress helps consumers
recognize and trust the products they purchase.
10. Case Studies
In the case of Britannia Industries Ltd. v. ITC Ltd. 13 Britannia Industries, a leading biscuit manufacturer, filed a suit against ITC Ltd. alleging that ITC's Sunfeast Farmlite Digestive biscuits packaging was deceptively similar to Britannia’s NutriChoice Digestive biscuits. Britannia claimed that ITC copied its trade dress, particularly the yellow and blue color scheme, layout, and packaging style, creating confusion among consumers. The Delhi High Court initially granted an interim injunction in favor of Britannia, restricting ITC from using similar packaging. However, upon appeal, ITC was allowed to use a modified version of its packaging. The case emphasized the importance of distinct branding in product packaging to avoid confusion. The case of Capital Foods (P) Ltd. v. Radiant Indus Chem (P) Ltd.
14 revolves around a dispute regarding the trademark "SCHEZWAN CHUTNEY" used by the plaintiff, a prominent food company, and its alleged infringement by the defendant. The Delhi High Court ruled that "SCHEZWAN CHUTENY" was only a descriptive name and hence, Radiant Indus Chem (P) Ltd. could not be prevented from using the same and that the Court further ruled that if protection is extended to the mark "SCHEZWAN CHUTNEY", then protection must also be extended to 'Tamarind Chutney' or 'Tomato Chutney', as they also consisted of a combination of words in "English and Hindi".
The Court added that it seemed from the plaintiff's advertisements that the term "SCHEZWAN CHUTNEY", while prominently used, was utilized by the plaintiff to identify the product, and the mark that established its source was actually "Ching's Secret" and although the plaintiff led evidence that mere use of the house mark by the parties in the case before it, viz. "Ching's" for the plaintiff and "MRS. ". FOODRITE" by the defendant, was not enough to rebut the plaintiff's allegation of infringement or passing off, nevertheless, the Court believed that it was use of these house marks that identify the origin of the goods, whereas the words "SCHEZUAN CHUTNEY" indicated the type of product. In the case of Parle Products Pvt. Ltd. v. Future Group Ltd. 15 Parle Products sought an injunction
13 2017 Del HC
14 2023 SCC OnLine Del 118
15 (2021) 120(1) BOMLR 116.
against Future Group, claiming that Future Group's packaging and labels for its products ("CRACKO", "KRACKER KING", & "PEEK-A-BOO") were deceptively similar to Parle's products ("MONACO", "KRACKJACK", and "HIDE & SEEK"). The court found that Future Group's products were indeed deceptively similar and granted an injunction, restraining Future Group from using the infringing packaging and labels. 16 In the case of Sazzy Sizzlers Cafe vs. Yanki Sizzlers Private Ltd. 17 the Sazzy Sizzlers Cafe, a restaurant known for its unique branding and presentation of sizzlers, filed a suit against Yanki Sizzlers Private Ltd. , alleging that Yanki Sizzlers had copied its overall restaurant appearance, including decor, color schemes, and menu presentation, leading to consumer confusion.
The Gujarat High Court has ruled that ‘sizzler’ is a common food name that can’t be a subject matter of a distinct trademark. The court noted that though passing off and infringement are conceptually different, both require the inquiry of likelihood to cause deception and are based on similar facts and hence the ground of passing off must have been pleaded in the infringement suit itself. the court held that since the Respondent had served sizzlers at the same location under ‘Kitchen Kraft’ their prior use was to be respected. The word ‘Sizzler’ was understood as being a common food name not capable of being a distinct trademark. 18 “It is universally identified as foodstuff in a similar way. The distinguishing marks are ‘Yanki’ and ‘Sazzy’, such unworkable injunction could not have been granted in law. The appellants claim to be using their own different recipe.
These aspects to be established on evidence. Without sufficient material establishing prima facie case in that regard, the injunction was not liable to be granted,”19 In this case the Gujarat High Court set aside injunction granted by the commercial court. In the case of Intercontinental Great Brands v. Parle Products Private Ltd20,. Intercontinental Great Brands requesting an injunction against Parle Products Private Limited and all those acting on behalf of the defendant from using the FAB! mark or from producing, packing or selling their vanilla cream filled chocolate sandwich biscuits in the impugned pack or adopting the impugned trade dress a trade dress which is misleadingly similar to the trade dress of the plaintiff's OREO biscuits and biscuit packs. The Delhi High Court ruled that blue and white packing, unmistakably similar in hue to that employed in the pack of the plaintiff.
is retained for vanilla cream-filled chocolate 16 Ritwik Tyagi, “Deceptively Similar Trademarks: A Case Analysis of Parle Products v. Future Consumer” (2020)
17 2023 Guj HC
18 Nikunj Soni, “HC puts to rest sizzle over sizzlers” (2024) available at:
https://www.ahmedabadmirror.com/hcputs-to-rest-sizzle-over-sizzlers/ (last visited on March 29, 2025)
19 Id.at 17
20 2023 SCC OnLine Del 728
sandwich biscuits just like the plaintiff. 21 The defendant has a purple packing for chocolate cream-filled chocolate sandwich biscuits. Hence, when one considers the marks and packaging utilized by the defendant in its bourbon biscuit, —jam-in filled biscuits, chocolate cream filled chocolate sandwich biscuits, and vanilla cream filled chocolate sandwich biscuits, at once one observes that it is only as to the vanilla cream filled chocolate sandwich biscuits that the packets bear such a remarkable similarity to those which the plaintiff encloses and markets its vanilla cream filled chocolate sandwich biscuits. 22 Therefore, the defendant is prohibited from utilizing the impugned FABIO or FAB! O mark for any purpose whatsoever.
The defendant is also prohibited from manufacturing, packing, or selling their vanilla cream filled chocolate sandwich biscuits in the impugned pack or utilizing the impugned trade dress. 23
11. Remedies for Trade Dress Infringement
Trade dress in India under the concept of passing off is guarded by the Trademark Act, 1999 where common law rights of a proprietor of an unregistered mark to file a suit by filing a suit for passing off defendants' products as plaintiff's products have been acknowledged. The relief available in the event of trade dress infringement as under Section 135 of the Trademark Act,1999 are as stated:
1. Injunction: Injunction is a proceeding that prevents unofficial or unauthorized use of
Trademark. The court provides protection to the owner of the trademark by restraining the infringer from further using the infringed mark.
2. Damages: Damages by way of compensation are given to the owner of the registered
trademark or the plaintiff by the infringer.
3. Profits Accounts: Any profit, which has accrued to the infringer when she/he made the
use of some other registered owner's trademark, all such profits or specified quantity of money payments are paid by the infringer to Trademark owner.
4. Destruction of infringing goods: The court can pass an order of destruction or
21 Arunima Bose, “Delhi High Court restrains Parle company from using FAB!O being deceptively similar to Cadbury’s OREO.” (2023)
22 Id.at 20
23 Id.at 20
elimination of all the goods or products made utilizing the infringed mark.
12. Conclusion and Suggestions
Trade dress serves as a critical tool in preventing consumer deception and ensuring fair competition in the food and beverage industry. It plays a significant role in helping consumers identify genuine products and fosters brand loyalty. This paper has highlighted the intricate interplay between trade dress elements, consumer perception, and legal frameworks, emphasizing the importance of distinctive and non-functional trade dress in safeguarding consumer interests and promoting fair competition. However, challenges persist including navigating the functionality doctrine, and adapting to the evolving landscape of consumer preferences and digital marketing. Ultimately, a balanced approach that prioritizes both brand protection and consumer welfare is essential for maintaining the integrity of the food and beverage market.
To further improve trade dress protection and prevent consumer deception in the food and beverage industry, the following steps can be taken: • Strengthening Enforcement: Courts and regulatory bodies should enforce trade dress laws rigorously to deter infringement and protect consumer interests. • Faster Legal Resolutions: Establish specialized legal mechanisms or fast-track dispute resolution systems to address trade dress infringement cases efficiently. • Increased Consumer Awareness: Educational campaigns should inform consumers about identifying authentic products and recognizing deceptive trade dress tactics. • Brand Vigilance and Registration: Businesses should register their trade dress under trademark laws and actively monitor the market for potential infringements.
• International Cooperation: Strengthening trade agreements and collaborations to ensure global protection of trade dress rights, particularly in the e-commerce sector.