When Packaging Becomes A Brand : The Limits Of Trade Dress Protection In India

Introduction : A consumer standing before a supermarket shelf may not always read the brand name before recognising a product. Sometimes, the colour of the packaging, the shape of the bottle, the arrangement of images, or even the overall visual appearance is enough to trigger recognition. This raises an important question for trademark law. This is the essence of "trade dress," and it is precisely what was at stake in the recent, closely watched dispute between Emami Limited and Dabur India Limited over their competing cooling hair oils.

The dispute between Emami and Dabur has now travelled to the Supreme Court and is more than a rivalry between two FMCG giants. The Indian courts now must confront a question: can the overall look of a product be protected even when none of its individual ingredients, a colour, a shape, a motif could be monopolised on its own? This blog will examine the doctrinal architecture of trade dress protection in India, and ask where its limits ought to lie, by the dispute of Emami and Dabur.

The Dispute : Red Bottles And Rival Claims

Emami's "Navratna" cooling oil has occupied a distinctive shelf presence built for many years. The red-and-green colour palette, a particular bottle shape, a flip-top cap, and a picture of ice cubes, hibiscus flowers, and ayurvedic herbs on the packaging. In 2023, Emami alleged that Dabur's newly launched "Cool King Thanda Tael" and after that Emami alleged Dabur that they adopted a similar visual ensemble, a comparable bottle geometry, the same colour combination, a similarly styled cap, and moved for an interim injunction on grounds of passing off.

The Delhi High Court single judge bench restrained Dabur from selling the product. After appeal, the Division Bench of the Delhi High Court also upheld the matter, after which Dabur challenged the Delhi High Court Ruling and moved to the Supreme Court.

What Is Trade Dress, And Where Does Indian Law House It?

Trade dress is the overall commercial image of a product or service that indicates or identifies the source of the product or service and distinguishes it from those of others. It may include elements such as packaging, colour combinations, shape, arrangement of visual features, graphics, and other aspects of the product's get-up.

Unlike the United States, where trade dress is an established statutory and common-law category under the Lanham Act, Indian law does not use the term explicitly. The Trademarks Act, 1999 defines a "mark" broadly enough under Section 2(1)(m) to include "the shape of goods, their packaging and combination of colours," which allows packaging and get-up to be registered as trademarks. Where such registration exists, an infringement action can be brought under Section 29, particularly Section 29(3), which raises a presumption of likely confusion where an identical or deceptively similar mark is used for identical or similar goods.

But much of India's trade dress jurisprudence, including the Emami–Dabur dispute, proceeds not under registered trademark infringement, but under the common law tort of passing off. This matters because passing off does not require registration at all. In these cases, the plaintiff has to establish the "classic trinity" test, which has three elements: goodwill or reputation, misrepresentation, damage or likely damage.

Deceptive Similarity And The Limits Of The House Mark Defence

The "deceptive similarity" doctrine of Indian trademark law is based on the common knowledge of the average consumer who buys a low value article and doesn't pay careful attention: if a comparison of the two products side-by-side under ideal conditions leads an ordinary consumer with imperfect memory and average care to be misled at first glance, then there is a deceptive similarity. In fast-moving retail environments, particularly in a market as price-sensitive and brand-loyalty-driven as India's cooling oil segment, a shopper often identifies a product by colour and shape well before reading, let alone parsing, the manufacturer's name on the label. A house mark printed in comparatively small type does little to correct an impression already created by a near-identical bottle silhouette and colour scheme. The courts' refusal to treat the house mark as a talisman against passing off liability is, in that sense, consumer-perception-driven rather than label-driven, and it is consistent with how Indian courts have approached deceptive similarity in earlier packaging disputes as well.

Dabur's claim that the prominence of its own "Dabur" house mark does not create any confusion was also rejected, and this rejection reflects a realistic, rather than formalistic, understanding of how consumers purchase any product. The Division Bench of the Delhi High Court held that the mere presence of a distinct brand name does not eliminate confusion arising from the broader visual get-up.

Functionality : The Doctrine's Necessary Counterweight

No discussion of trade dress protection is complete without acknowledging its outer boundary: functionality. Trade dress law protects source-identifying appearance, not useful design. A functional packaging feature that exists because it makes the product work better, cheaper to manufacture, or more practical to use cannot be monopolised through trade dress law, however long it has been used, because doing so would improperly extend trademark protection into the territory reserved for patents, and would foreclose legitimate competitors from making equally functional products.

In the Emami–Dabur case, this doctrine was not at the forefront as it was only ornamentally addressed by the combination of colours, ornamental iconography and specific label layout, elements that were considered aesthetic and source-identifying and not functionally required. The doctrine is a very good defence for the defendant's packaging choice. They may be able to specifically plead and provide evidence of functionality where a defendant's packaging decisions could reasonably be attributed to manufacturing efficiency, product protection or consumer utility.

Conclusion: A Developing But Cohrent Framework

The Emami-Dabur case illustrates a proposition which has been floating in the Indian trade dress law for some time without being put as clearly as this. Trade Dress protection is based on overall commercial impression and not individual features – this is the appropriate unit of legal analysis. When viewed together, and in conjunction with the classic test for passing off in unregistered cases (which is now Section 29(1)), the test for registered dress makes some sense. Courts now have a viable system to safeguard the appearance of the product while leaving open for all brands access to common designs in a product category.

But it is not clear if that signal, awaiting the Supreme Court's final ruling, can take it as something that can't be simply a decorative item and not be subject to the protection that it must come from the perception of the consumers and acquired distinctiveness, and not from its inherent right to keep others out of the design scheme. The inherent difficulty in this area of jurisprudence is whether it is possible to strike a compromise between safeguarding genuine brands and retaining a common design vocabulary used by all other players in this area.

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

Reference

1. Emami Limited v. Dabur India Limited, CS(COMM) 532/2023, Delhi High Court, decided on 31 January 2026.

2. Dabur India Limited v. Emami Limited, FAO(OS) (COMM) 23/2026, Delhi High Court, decided on 22 May 2026.

3. The Trademarks Act, 1999, Section 2(1)(m).

4. The Trademarks Act, 1999, Section 29.

5. Lanham Act, 15 U.S.C. § 1125.

6. International Trademark Association, "Trade Dress."

7. Obhan & Associates, "Overall Impression Essential When Comparing Composite Trademarks," Delhi High Court commentary, 2026.

8. Cornell Law School Legal Information Institute, "Functionality Doctrine (Trademark)."