Brand Battles in The Food Industry: Can Shape, Texture, or Colour of Food Be Protected?

Introduction

Have you ever taken a chocolate bar just because it seemed familiar before looking at the brand name? That is not an accident. In food and drinks, looks matter more than ever. It is no longer just about what something tastes like; colour, shape, and even texture have become subtle but powerful tools in grabbing consumer attention. From the domed, rounded biscuits of Oreo to the pinnacled triangular edges of Toblerone, food design is becoming inextricably entwined with brand identity. 

But then there arises a vital question: Is a brand able to trademark these design elements under intellectual property law? And if so, what legal tools are employed to keep others from copying the same look or feel?

This blog takes apart the legal situation in India and the world at large and shows how legislatures and courts are beginning to wrestle with this fascinating intersection of food design and IP rights. Researches show that sensory marketing is a real thing and confirms that buying choices of consumers heavily depend on what they see, what they touch i.e., visual, and tactile stimuli directly influence public relations with the food product; for example, 2015 investigation published in Appetite revealed that colour, shape, texture has the potential to greatly influence taste expectations and brand recognitions. This observation can be seen day to day at domestic level too, just how people feel that triangular sandwiches taste far better than rectangular ones. Hence the way a particular edible is made to look can essentially be an USP to upscale.  

Learning the Basics: Where Food and IP Law Connect

The law does not exactly enable protecting what something appears like, particularly if it is something you can eat. Few concepts that are generally opted by the companies:

1. Shape Marks: A form of trademark that protects the shape of a product, assuming it is not required for the product to function. A curvaceous bottle or a moulded chocolate, for example, could fit the bill

2. Colour Marks: These are colours used so distinctively that customers associate them with one brand. Think about Cadbury's purple or Milka's lilac.

3. Trade Dress: Holistic visual experience of a product, be it colour scheme, shape, layout, design. Rare, but perhaps—think of a product whose surface feel (e.g., rough handle or ribbing) is the very essence of what it is.

These unique marks can be trademarks under Section 2(zb) of the Indian Trade Marks Act, 1999 and Article 4 of the EU Trade Mark Regulation, and Section 43(a) of the US Lanham Act. , if they are distinctive and are not functional. But that is not quite so simple.

The Sensory Dimension of Branding

Marketing studies have long proven that we "eat with our eyes." Studies have even proven that what we see and touch affect the way we taste. With the rise of social media platforms like Instagram, food presentation is now more crucial—vibrant colors, clean packaging, and playful designs are not merely aesthetics; they are practical business strategies. 

No wonder, then, that companies are investing hard currency developing new food shapes. But protecting those shapes? That gets tricky under IP law.

Legal Means of Protection

Trademark Law

The Trade Marks Act of 1999 protects non-traditional marks like shape and packaging. But only if the mark is distinctive (the public associates it with a single brand) and non-functional (it is not required for the product to work or be consumed). It clearly defines a trademark to include the shape of goods and their packaging (Section 2(zb)). The functionality doctrine, a fundamental concept of trademark law, prohibits registering a feature which is vital to the product’s use or purpose or that may have the power to influence its cost or quality. The same is reflected in Section 9(3) of the Indian Act as well as in frameworks of international domain.

Colour marks are harder to register. You need irrefutable proof that members of the public identify a particular colour with your brand alone. Cadbury, for example, battled for decades in British courts in order to register its colour purple. Milka battled long wars across the EU before its lilac packaging was deemed to have "secondary meaning.”

Texture marks, even though not so mainstream, are not entirely unattainable. If distinguished, quintessential surface texture has the potential to signify the source and does not entirely determined by its function, it may be eligible for registration.

Design Law

The Designs Act, 2000 provides a limited monopoly in relation to new shapes, surface decorations, and packaging appearances—if only they are new and beautiful. It does not extend to functionality either. So, if your biscuit shape leads to it being stacked well in a tray, that is not covered.

Trade Dress

This preserves the overall look and feel of a product, especially the packaging. In India, the passing off law shields trade dress, where imitation is required by law and market goodwill.  

Patents and Copyrights

You cannot patent them. They will not yield anything fruitful. Patents are technical innovations, not looks.   Copyright can apply to packaging or advertising design—but not the actual product.

Courtroom Clashes: When Brands Go to Battle

Indian courts are slowly prepping to get defence for the way food is presented or how it looks or if it has a certain texture. Some of the notable cases are:

Mondelez India Foods Pvt Ltd v Parle Products Pvt Ltd [2020] DEL HC: Mondelez complained that Parle's 'Fabio' biscuits violate the trade dress of Oreo. Interim relief was ordered by the Delhi High Court, recognizing that the package and the design constitute the dominant portion of the brand identity.

[Image Sources: Shutterstock]

Britannia v Future Consumer (2018): Britannia contested the packaging of Tasty Treat biscuits, alleged that it resembled multiple of its very own product genres. It was resolved out of court, but that it went to litigation shows how packaging is no small matter.

A landmark European case, Société des Produits Nestlé SA v Cadbury UK Ltd (Kit Kat case) [2018] ECJ, witnessed Nestlé’s effort to trademark the four-finger shape of Kit Kat as a 3D trademark, ultimately being denied. The ECJ determined that the shape alone lacked sufficient distinctiveness without a logo or word mark, despite its extensive use.

Milka’s distinctive lilac case (Pantone 2685C) has been the focus of ongoing legal battles in the EU and Germany, with courts validating its registration when secondary meaning was established.

Gorbatschow Vodka v John Distilleries (2011): Although not a food product, this Bombay High Court case upheld shape-based trademark protection for a bottle shape, further solidifying the case for non-traditional marks.

ITC Ltd v Nestlé India Ltd (2023): ITC had filed the court case against Nestlé Yippee vs Maggi noodle packaging due to color and design similarity. The case is pending but indicates a growing number of visual IP cases being filed in fast-moving consumer goods (FMCG) world.Internationally, the Kit Kat case saw Nestlé lose the opportunity to trademark the shape of the chocolate because the European Court felt that it was not devoid of distinctiveness when there was no logo. Milka did succeed, however, after acquiring habitual use and public identification with the brand colour.

What's Getting in the Way?

The biggest hindrance in getting the Intellectual Property(IP) protection is the doctrine of functionality. If the shape or size of a product renders it more effective (like a lid that fits precisely), courts will not let you monopolize it under IP. Since such feature is practical and must be there and forms a cartilage and not something quintessential to the brand which would distinguish it from the rest. Hence such feature (say lid) would be identified as a functional quality and will not qualify for protection.

And finally, there is the test of distinctiveness, which can get a little tricky- is it possible for you to prove that consumers identify this shape, colour, or texture with your brand? Brands would be expected to produce substantial evidence to the table that generally means proving expensive advertising campaigns, prolonged use, or surveys that test customer awareness. specific brand. Section 9(3) of India's Trade Marks Act and legislation under the Designs Act both put weight on this. The Designs Act similarly denies protection for features that are dictated solely by their function or those that have already been made public.

What the World is Doing

Globally, the approach is cautious:

1. In America, trade dress is also covered under the Lanham Act—but you must first pass the requirements of non-functionality and consumer recognition. obstacles.

2. In the European Union, food looks such as Milka's and even the shape of bottles has been granted protection—courts are careful to ensure such IP does not lead to unjust monopolies.

3. India, by contrast, is still developing. Courts have been receptive to new arguments but remain demanding of robust evidence and clean legal fit.

What Should Brands Do?

If you are a food business looking to protect the appearance of your product, then following are expected out of you to be done. It is all about being strategic.

1. Utilize your design throughout i.e., creating themes and consistently applying them in product as well as marketing campaigns. 

2. Gather the evidence that customers are aware of it and accept it (review commercials, questionnaires, sales figures).

3. Register your IP early—especially if it is a new colour, combination, shape, or texture.

4. Be vigilant for imitation and be prepared to shift.

Besides, with computer design and 3D printing accessible these days, brands have the ability to make highly tailored shapes and packaging—but that technology has to be weighed against food safety regulations and the risk of overdoing it in cornering essential design aspects.

At its essence, trying to maintain the appearance, texture, or shape of food is a savvy business move—but one that walks legal tightropes. Legislators and judges are willing to promote innovation but not at the cost of fair competition. As the law around non-conventional IP develops further, especially in India, food companies must be cautious, shrewd, and data-driven when declaring these rights. Because, practically , in a marketplace where looks can be as formidable as flavour, the battle for the face of your brand can be fought in the courtroom as fiercely as it can in the supermarket.

Author:  Kriti Raj, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.