Trade Dress Protection for Luxury Fashion Products in India: Gaps in the Trademarks Act, 1999

Authored By: Shruti Sharma

Bharati Vidyapeeth Institute of Management and Research

Abstract

Trade dress refers to the totality of visual elements, including shape, colour, texture, design, and overall commercial image that identify a product or service and distinguish it from competitors in the marketplace. In the luxury fashion industry, trade dress is not merely an aesthetic consideration; it constitutes the very core of brand identity and economic value. The iconic red lacquered sole of a Christian Louboutin stiletto, the distinctive silhouette of the Hermès Birkin bag, and the interlocking ‘CC’ pattern of Chanel are all paradigmatic examples of trade dress that commands global recognition and commands premium pricing. India’s Trademarks Act, 1999 (hereinafter ‘the Act’) provides the primary legislative framework governing intellectual property protection for marks used in trade. However, the Act lacks an explicit statutory definition of ‘trade dress,’ relying instead on the broadly worded definition of ‘mark’ under Section 2(zb) and the concept of a ‘well-known trademark’ to extend partial protection. This legislative lacuna creates significant uncertainty for luxury fashion houses seeking to protect the overall commercial appearance of their goods in India, which is one of the world’s fastest-growing luxury consumer markets.

This article argues that the absence of a dedicated trade dress regime in Indian law constitutes a material gap that judicial interpretation alone cannot adequately remedy. Drawing on a comparative analysis of United States and European Union frameworks, alongside key Indian case law including Christian Louboutin SAS v. Abubaker & Ors. (Delhi HC, 2018), this article proposes a targeted A statutory amendment to the Trademarks Act, 1999, supplemented by dedicated IP enforcement guidelines for luxury goods, is the most appropriate path forward.

Keywords

Trade dress, Luxury Fashion, Trademarks Act 1999, Brand identity, Intellectual property protection, Statutory reform.

Introduction

Trade dress also called as get-up, 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. Depending on the jurisdiction, it may, for example, include the design or configuration of a product, the packaging of goods, or the décor or environment in which services are provided. Trade dress can consist of such elements as size, shape, colour, texture, etc., to the extent such elements are not functional. [1]

Consider a simple question: what makes a pair of shoes worth more than ₹100,000? The answer, in part, is the sole. The glossy red lacquer that coats the undersole of every Christian Louboutin heel is not merely decorative; it is a commercial signal, an assertion of provenance, an embodiment of decades of brand equity. When a consumer in Mumbai spots that flash of red as a woman ascends a staircase, the colour itself communicates authenticity, status, and a specific luxury narrative. This visual shorthand is what intellectual property lawyers call trade dress: the overall commercial image of a product that identifies its source. Luxury fashion operates in a uniquely image-intensive economy. Unlike commodity goods, whose value is determined primarily by material cost and functional utility, luxury products derive a substantial portion of their market value from their distinctive aesthetic identity. The silhouette of the Hermès Birkin bag, its trapezoid body, its turn-lock clasp, and its carefully proportioned handles are as important to its ₹800,000 price tag as the quality of the leather used to construct it. The Burberry tartan, the Louis Vuitton monogram canvas, the Bottega Veneta intrecciato weave: each of these represents accumulated brand value expressed through visual identity. Protecting this identity is not merely an academic IP concern; it is a matter of commercial survival in an industry rife with counterfeiting and imitation.

India presents a compelling and timely context for this inquiry. According to the Confederation of Indian Industry and Bain & Company, the Indian luxury market is projected to reach USD 200 billion by 2030, driven by a growing ultra-high-net-worth population and expanding retail infrastructure in metropolitan centres.[2] Simultaneously, India remains a significant source of counterfeit luxury goods, both for domestic industry implications and significant international trade dimensions.[3]

Background

Under Indian Law The Trademarks Act, 1999, does not define ‘trade dress’ as a standalone legal concept. Protection must instead be claimed through the Act’s general definition of ‘mark’ under Section 2(zb),[4] which provides that a 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] The breadth of this definition is noteworthy: it encompasses ‘shape of goods’, ‘packaging’, and ‘combination of colours’, all of which are central to the concept of trade dress. However, the Act does not give these elements a unified identity as ‘trade dress’ or establish a coherent legal test for their protection as an integrated whole. In practice, Indian courts and legal practitioners have imported the concept of trade dress from US jurisprudence, where it is explicitly recognised under the Lanham Act [6](15 U.S.C. § 1125(a)). Under US law, trade dress encompasses the total image and overall appearance of a product, including features such as size, shape, colour or colour combinations, texture, graphics, and even particular sales techniques. The American courts have developed a two-pronged test for trade dress protection: the claimant must demonstrate (a) that the trade dress is ‘distinctive’ (either inherently or through acquired secondary meaning) and (b) that it is ‘non-functional’. Indian courts have informally adopted analogous criteria, though without statutory grounding.[7]

Distinguishing Trade Dress from Adjacent IP Rights

Trade Dress Protection in Indian Luxury Fashion Law Trademark: A registered trademark under the Act protects a specific sign, typically a word, logo, or device mark that distinguishes goods or services of one undertaking from those of another. Trade dress, by contrast, concerns the holistic visual presentation of a product, which may include elements that individually would not qualify for trademark protection but collectively create a distinctive commercial impression. Copyright: The Copyright Act, 1957,[8] protects original artistic works, including two-dimensional designs and artistic craftsmanship applied to articles. However, copyright protection has significant limitations in the trade dress context: Section 15 of the Copyright Act provides that copyright in a design that is capable of being registered under the Designs Act, 2000,[9] shall cease if the article to which the design has been applied has been reproduced more than fifty times by an industrial process. This creates a structural disincentive for luxury brands whose products are manufactured at scale to rely on copyright for trade dress protection. Design Protection: The Designs Act, 2000 protects the novel visual features of shape, configuration, pattern, ornament, or composition of lines or colours applied to an article. While this framework appears tailored to luxury fashion, it suffers from critical limitations: protection lasts only fifteen years, registration is required, the design must be novel at the time of registration, and the design must not have been disclosed to the public prior to registration. These requirements must not have been disclosed to the public prior to registration. These requirements are ill-suited to the fashion industry, where new collections are previewed months in advance of retail release, potentially invalidating design registration through prior disclosure.

Legal Analysis

Trade Dress Under the Trade MarksAct, 1999

Mechanisms for Claiming Trade Dress Protection

In the absence of a dedicated trade dress statute, luxury brands in India pursue protection through a combination of mechanisms under the Trade Marks Act, 1999, supplemented by the common law tort of passing off.

The most direct route is the registration of ‘non-traditional marks’ under the Act’s expansive definition of ‘mark’ in Section 2(zb)[10]. Colour marks, shape marks, and three-dimensional marks are all theoretically registrable. The Trade Marks Registry has accepted applications for colour combinations (notably in the pharmaceutical sector) and shape marks, though practice in the luxury fashion sector remains underdeveloped.

Importantly, Section 9(3)[11] of the Act specifically excludes from registration marks ‘consisting exclusively of the shape of goods which results from the nature of the goods themselves’ or ‘the shape of goods which is necessary to obtain a technical result’ or ‘the shape which gives substantial value to the goods.’ This functionality exclusion, mirroring provisions in EU trademark law,[12] poses a significant challenge for luxury fashion brands where the aesthetic appeal of shape is often the primary driver of consumer demand, creating the paradox that the more commercially valuable the trade dress, the harder it may be to register.

In parallel, brands frequently rely on the passing off action, which does not require registration and protects goodwill, misrepresentation, and resulting damage.

Case Law

Christian Louboutin SAS v. Abubaker & Ors. (Delhi HC, 2018) [13]

The most significant Indian judicial pronouncement on luxury fashion trade dress to date is Christian Louboutin SAS v. Abubaker & Ors., decided by the Delhi High Court in 2018. The case arose from Louboutin’s attempt to obtain interim injunctive relief against a retailer selling shoes with red soles similar to the distinctive Louboutin red sole, which Louboutin had registered as a colour mark in India (Application No. 2387971) covering ‘Lacquered red colour (Pantone No. 18 1663TP) on the outsole of footwear’ in Class 25. The Court, in granting interim relief, made several observations of significance for trade dress law. Justice Pratibha Singh noted that colour per se can function as a trademark when it has acquired distinctiveness through use and that the Louboutin red sole had achieved a degree of recognition among Indian consumers sufficient to justify interim protection. The Court applied the classical passing off test and also engaged with the concept of ‘well-known trademark’ under Section 2(zb)[14] read with Section 11(6) of the Act, finding that Louboutin’s mark satisfied the criteria for well-known status. Critically, however, the Court did not explicitly engage with the concept of trade dress as a unified legal category. The analysis proceeded along conventional trademark and passing-off lines, addressing the red sole in isolation as a colour mark rather than situating it within the broader visual presentation of the Louboutin product.

This approach, while practically effective in achieving injunctive relief, does not establish a principled doctrinal foundation for holistic trade dress protection. It also leaves open the question of whether elements of the Louboutin trade dress that are not individually registered the silhouette of the heel, the packaging, and the overall brand environment enjoy equivalent protection.

Zippo Manufacturing Co. v. Anil Moolchandani & Ors.[15]

The Zippo case before the Delhi High Court addressed the protectability of the shape of the iconic Zippo lighter, its rectangular body with a hinged cap and rounded edges, which the plaintiff had registered as a three-dimensional mark in India. The defendant argued that the shape was functional (serving to protect the lighter mechanism and enable one-handed operation) and therefore excluded from trademark protection under Section 9(3)[16] of the Act. The Court engaged in a nuanced analysis of the functionality doctrine, distinguishing between ‘utilitarian functionality’ (features that serve a mechanical purpose) and ‘aesthetic functionality’ (features that enhance the product’s appeal without serving a mechanical purpose). While the Court acknowledged that some elements of the Zippo shape served functional purposes, it held that the overall gestalt of the lighter had acquired sufficient secondary meaning to warrant protection as a shape mark, irrespective of individual functional elements. This reasoning, protecting the holistic impression of a product’s appearance even where individual elements are functional, is directly relevant to luxury fashion trade dress. It suggests that Indian courts are, in principle, receptive to a non-reductive approach to product appearance protection that considers the overall commercial impression rather than atomising the product into its constituent elements. However, the case concerned a relatively simple industrial design rather than a complex fashion product, and the precedential value for luxury fashion is correspondingly limited.

Recent Enforcement: Louis Vuitton Malletier v. Various Defendants[17]

Louis Vuitton has been one of the most active litigants in Indian IP courts, pursuing enforcement actions against infringers of its Monogram Canvas pattern the interlocking ‘LV’ initials combined with a quatrefoil and a circular motif, which has been registered as a trademark in India. In a series of Delhi High Court orders (2019–2023), the Court granted interim injunctions, Anton Piller-style search orders, and damages against infringers ranging from street vendors in Chandni Chowk to online retailers on Indian e-commerce platforms. These cases are instructive for several reasons. First, they demonstrate that Indian courts are willing to grant robust relief in luxury brand enforcement cases when a specific registered mark is at issue. Second, they reveal the limits of registration-based protection: in each case, the infringing goods bore a colourable imitation of the registered ‘LV’ monogram, and the enforcement action was, correspondingly, straightforward. However, none of the cases addressed the broader question of protection for the overall Monogram Canvas pattern as trade dress, its texture, colour palette, background design, and overall visual effect as a unified commercial image. Had the infringer been more sophisticated, replicating the visual atmosphere of the Monogram Canvas without directly copying the registered logo, the outcome might have been less certain. This limitation illustrates the core problem with the registration-dependent approach to luxury fashion IP protection in India: it protects the logo, but not the look

Critical Analysis / Findings

Where Indian Law Falls Short ?

The foregoing analysis reveals four specific deficiencies in the current Indian legal framework for luxury fashion trade dress protection. First, the absence of a statutory definition of trade dress as a unified concept means that protection is necessarily piecemeal. Brands must register individual elements (colour marks, shape marks, three-dimensional marks) separately, and the holistic commercial impression created by their combination may receive no protection at all if individual elements are either not registered or found to be functional in isolation. Second, the functionality exclusion in Section 9(3)[18] of the Act is drafted too broadly for the luxury fashion context, where aesthetic appeal and source identification are inextricably linked. A provision designed to prevent monopolisation of useful product features risks being applied to deny protection to purely ornamental elements that function primarily as source identifiers. Third, the absence of border measure protection for unregistered trade dress is a significant enforcement gap. Customs authorities can seize goods bearing counterfeit registered trademarks, but goods that replicate a luxury brand’s overall commercial appearance without copying specific registered marks fall outside the scope of current border control provisions. Fourth, the high evidentiary burden for establishing secondary meaning disadvantages brands that are new to the Indian market or that sell at price points accessible to a small consumer segment, even if their trade dress enjoys global recognition.

Is Judicial Interpretation Filling the Gap?

Indian courts, particularly the Delhi High Court’s Intellectual Property Division, have demonstrated sophistication and a willingness to protect luxury brand aesthetics within the existing statutory framework. The Louboutin and Zippo decisions suggest that Indian judiciary can, through purposive interpretation of Section 2(zb)[19] and creative application of passing off doctrine, extend meaningful protection to non-traditional marks. However, judicial gap-filling has inherent limitations in the trade dress context. Common law development is by nature retrospective, reactive, and unpredictable: it requires a claimant to invest in litigation before knowing whether the relevant trade dress will be protected. It produces a patchwork of precedents that may be difficult to reconcile and that leave significant uncertainty for brands assessing their IP position in India without the resources to litigate test cases. It also cannot address the procedural deficiencies: the absence of customs protection for unregistered trade dress and the lack of specialist IP tribunals that require legislative action. Moreover, the Supreme Court of India has not yet definitively addressed the protectability of fashion trade dress, leaving lower court decisions vulnerable to reversal and limiting their binding force. A statutory framework would provide the certainty and predictability that judicial development cannot.

Recommendations

This article advances two primary recommendations. First, the Trade Marks Act, 1999 should be amended to introduce an explicit definition of ‘trade dress’ as ‘the total image and overall appearance of a product, including but not limited to its shape, packaging, colour or colour combinations, texture, design, and graphic elements, which identifies and distinguishes the product in the marketplace.The definition should be accompanied by a modified functionality exclusion that expressly preserves protection for aesthetic features that have acquired distinctiveness as source-identifiers, even where those features also contribute to the product’s commercial value.

Second, the Customs (Import of Goods at Concessional Rate of Duty) Rules should be amended to extend border measure protection to goods that infringe well-known trade dress, whether the relevant elements are separately registered as trademarks. This would align India’s enforcement framework with the TRIPS Agreement’s requirement (Article 51)[20] that border measures be available against goods that ‘infringe intellectual property rights’, which the WTO Appellate Body has interpreted to include unfair competition-based trade dress rights in relevant jurisdictions.[21]

Conclusion

The Trade Marks Act, 1999, provides an important but ultimately insufficient basis for the protection of trade dress in India’s luxury fashion sector. The absence of a statutory definition, the breadth of the functionality exclusion, the limitations of border control provisions, and the high burden of proving distinctiveness collectively create a framework that protects the logo but not the look, an outcome that is increasingly inadequate as India’s luxury market grows, and the sophistication of infringers increases.

Indian courts have responded with creativity and a measure of sophistication, extending protection through expansive interpretation of existing provisions and the common law of passing off. However, judicial gap-filling cannot substitute for a coherent legislative framework, particularly in an area with significant procedural and enforcement dimensions that require statutory authority.

The most appropriate path forward is a targeted amendment to the Trade Marks Act, 1999, introducing trade dress as a distinct protected category with a clear definition, a calibrated functionality exclusion, and enhanced border measure provisions. Such an amendment would align India with international best practice, strengthen India’s position as a jurisdiction hospitable to luxury brand investment, and signal India’s commitment to robust IP enforcement as a component of its broader economic development strategy. The luxury brands of the future will be built on design as much as function; Indian law must evolve to protect both.

References and Bibliography

Statutes and Regulations

Trademarks Act, 1999 (Act No. 47 of 1999), Government of India.
Copyright Act, 1957 (Act No. 14 of 1957), Government of India.
Designs Act, 2000 (Act No. 16 of 2000), Government of India.
Trademarks (Amendment) Act, 2010.
TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights), 1994, Annex 1C to the WTO Agreement.
Lanham Act, 15 U.S.C. § 1051 et seq. (United States).
EU Trademark Regulation (EU) 2017/1001 of the European Parliament and of the Council.
Community Design Regulation (EC) No. 6/2002 of the Council.

Case Law

Christian Louboutin SAS v. Abubaker & Ors., CS (COMM) 714/2018, Delhi High

Court (2018).

10.⁠ ⁠Zippo Manufacturing Co. v. Anil Moolchandani & Ors., Delhi High Court.

12.⁠ ⁠Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000) (US Supreme Court).

13.⁠ ⁠Christian Louboutin SAS v. Van Haren Schoenen BV, Case C-163/16 (Court of Justice of the European Union, 2018).

14.⁠ ⁠Libertel Groep BV v. Benelux-Merkenbureau, Case C-104/01 (Court of Justice of the European Union, 2003).

15.⁠ ⁠Louis Vuitton Malletier v. Various Defendants, Delhi High Court (2019–2023, various orders).

Academic Articles and Books

16.⁠ ⁠Ghosh, Sudipta, ‘Non-Traditional Trade Marks in India: Emerging Jurisprudence and Legislative Gaps’ (2021) 26(3) Journal of Intellectual Property Rights 145.

17.⁠ ⁠Menon, Nisha, ‘Protecting Fashion Design in India: An Analysis of Existing Legal Mechanisms and Proposed Reforms’ (2020) 15(2) NALSAR Law Review 88.

18.⁠ ⁠Ramappa, T., Intellectual Property Law in India (5th edn, LexisNexis India, 2023).

19.⁠ ⁠Veblen, Thorstein, The Theory of the Leisure Class (Macmillan, 1899).

20.⁠ ⁠McCarthy, J. Thomas, McCarthy on Trademarks and Unfair Competition (5th edition,) West Group, 2023).

21.⁠ ⁠Dinwoodie, Graeme B and Janis, Mark D, Trade Dress and Design Law (Aspen Publishers, 2010).

22.⁠ ⁠Sahai, Nidhi, ‘Colour as a Trademark in India: Lessons from Louboutin’ (2019) 24(1) Journal of Intellectual Property Rights 22.

23.⁠ ⁠Confederation of Indian Industry and Bain & Company, India Luxury Report 2023 (CII, 2023).

24(1) Journal of Intellectual Property Rights 22.

23.⁠ ⁠Confederation of Indian Industry and Bain & Company, India Luxury Report 2023 (CII, 2023).

WIPO and International Resources

24.⁠ ⁠World Intellectual Property Organization, Introduction to Intellectual Property: Theory and Practice (Kluwer Law International, 1997).

25.⁠ ⁠WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications, ‘New Types of Marks’ (SCT/16/2, 2006).

27.⁠ ⁠WIPO, ‘Protection of Non-Traditional Marks: Key Considerations

[1] International Trademark Association, ‘Trade Dress’ (International Trademark Association) <https://www.inta.org/topics/trade-dress/\> accessed 7 June 2026

[2]India, the Next Big Luxury Market to Grow 3.5 Times by 2030’ (Luxury Tribune, 9 January 2023) https://www.luxurytribune.com/en/india-the-next-big-luxury-market-to-grow-3-5-times-by-2030 accessed 8 June 2026, citing Bain & Company, Renaissance in Uncertainty: Luxury Builds on Its Rebound (Bain-Altagamma Luxury Goods Worldwide Market Study, November 2022)

[3] Shivani Mehra, ‘India Luxury Goods Market Outlook 2030’ (Ken Research, December 2024) https://www.kenresearch.com/industry-reports/india-luxury-goods-market accessed 8 June 2026

[4] Trade Marks Act 1999 (India), Act No 47 of 1999, s 2(zb), available at https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,_1999.pdf accessed 8 June 2026

[5] Trade Marks Act 1994

[6] Lanham (Trademark) Act 1946, 15 USC §§ 1051–1141

[7] Thilini Kahandawaarachchi, ‘A Study of Indian and US Trademark Law Relating to the Effect of Non-Use of a Trademark’ (2007) 12 Journal of Intellectual Property Rights 236

[8] Copyright Act, 1957 (Act No. 14 of 1957), s 15.

[9] Designs Act, 2000 (Act No. 16 of 2000), ss 4, 5, 1

[10] Trade Marks Act 1999 (India), Act No 47 of 1999, s 2(zb), available at https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,_1999.pdf accessed 8 June 2026

[11] Trade Marks Act 1999 (India), Act No 47 of 1999, s 9, available at <https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,

[12] Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark [2017] OJ L 154/1

[13] Christian Louboutin SAS v Abubaker & Ors, CS (COMM) No 890/2018 (Delhi High Court, 25 May 2018) (Valmiki J. Mehta J), <indiankanoon.org/doc/175186752/>.

[14] Trade Marks Act 1999 (India), Act No 47 of 1999, s 9, available at <https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,

[15] Zippo Manufacturing Company v Anil Moolchandani and Others CS(OS) 1355/2006 (Delhi High Court, 31 October 2011) (2011) 185 DLT 51

[16] Trade Marks Act 1999 (India), Act No 47 of 1999, s 9, available at <https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,

[17] Louis Vuitton Malletier v Various John Does No 1:01-cv-07809 (SDNY, 2001)

[18] Trade Marks Act 1999 (India), Act No 47 of 1999, s 9, available at <https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,

[19] Trade Marks Act 1999 (India), Act No 47 of 1999, s 9, available at <https://www.indiacode.nic.in/bitstream/123456789/15427/1/the_trade_marks_act,

[20] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1995), Art

[21] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1995), Art 51.