With the growing of commercial industries, competitiveness arises; therefore the value of trade dress of a product is tremendous. Trade dress is the overall image of the product involving the features of the visual or sensual appearance of a product. It also consists of its packaging, shape, combination of colors and textures which differentiate it from others.

But despite the meaning given above, Trade dress is not explicitly defined in the Trademark Act 1999, however, Section 2(1)(m) defines a “mark” to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof and 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 an cork. Hence, trade dress can indirectly be within the scope of the Trademark Act 1999.

Devagiri Frams case[1] has perceptibly explained the concept of trade dress as well as the involvement of trade dress infringement.


The respondents (Sanjay Kapur and Naina Kapur) sell tea under the trade name ‘San-Cha’. Their packaging was a soft paper packet shaped as a rectangular cuboid and the package slipped into a fabric sleeve and tied at the mouth by a traditional drawstring/dori.

The Appellant Devagiri Farms, who came into the tea business after the Respondents, sell their tea under the trade name BAGAN. However, it was claimed by the Respondents that the fabric sleeve packaging associated to the Appellants is similar to that of the Respondents; hence an ad interim injection was granted against the Appellant.

That being the case, the Appellant filed the present appeal opposing the interim injunction.


The Appellant argued that the trade dress sought to be protected is functional and also there were several distinguishing features in both the product. Besides that, both their trademarks are prominently displayed and thus, there cannot be any deception.

The Respondent claimed that the color in the backdrop with a floral design of the Appellant is the same as the respondent, although, the floral print is different but with the same gold yellow color.


The court precisely submitted that ‘a merely because a trademark is displayed on the packaging material, notwithstanding a striking similarity in the packaging material there would be no likelihood of deception’.

The court also applied the well recognized touchstone of the principle of deception – “it would be apparent to the naked eye that any purchaser of tea with the usual imperfect recollection to which all humans are prone to, would be deceived when she comes across the tea packaged by the appellant.”

Hence, the court held that ‘so striking is the theft by the Appellant of the packaging used by the Kapurs that even an elite, educated, widely exposed and travelled person is likely to be deceived.

The appeal was dismissed with a sum of Rs 25000/- to be paid to the Respondent by the Appellant.


The judgment gave a precise criterion on the examining of a trade dress infringement. It stressed on the fact that it is the overall get up and similarity which has to be seen. It is not the minor variations since it is the similarity which strikes and not the dissimilarities which distinguish when an ordinary person recall an object seen in the past.

[1] Devagiri Farms Pvt. Ltd. vs Mr Sanjay Kapur & Anr.,1 February, 2016


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