Colour and Trade Dress as Indicators of Infringement - Several cases highlight that distinctive colour schemes and trade dress can serve as source identifiers, but their protection depends on the extent of uniqueness and recognition in the market. For example, in Delhi High Court judgments, the use of a combination of purple, green, and a third colour at the bottom of boxes was considered to create a unique trade dress ["METIS LEARNING SOLUTIONS PRIVATE LIMITED vs FLIPKART INDIA PRIVATE LIMITED & ORS. - Delhi"], ["METIS LEARNING SOLUTIONS PRIVATE LIMITED vs FLIPKART INDIA PRIVATE LIMITED & ORS. - Delhi"]-393_2022). However, courts have also noted that if such colour combinations are no longer similar or if the packaging is not restricted to specific colours, the likelihood of infringement diminishes ["METIS LEARNING SOLUTIONS PRIVATE LIMITED vs FLIPKART INDIA PRIVATE LIMITED & ORS. - Delhi"].
Use of Colour in Packaging Not Infringing if Not Exclusive - Courts have emphasized that colours are generally not registrable as trademarks unless they have acquired secondary meaning or are used in a distinctive manner. In cases where multiple manufacturers use similar colour schemes (e.g., yellow vs. blue dominant colours for lollipops), the courts found no infringement, citing that colour alone does not indicate a product source ["IND00079354"].
Distinction Between Passing Off and Trademark Infringement - Some judgments clarify that mere similarity in colour or packaging does not automatically constitute infringement or passing off unless it can be shown that the deceptive similarity is likely to cause confusion or deceive consumers. For instance, in a case involving ballot boxes, the court noted that the colour on the ballot box did not mislead voters if the colour did not resemble the designated colour for a particular candidate’s box ["
MIHULAR v. NALLIAH
"].Colour and Instruction Use as Non-Infringing Industrial Practice - The use of specific colours and instructions on packaging, especially when such features are common and widely used, does not amount to infringement if the features are not distinctive or are part of standard industry practice. Courts have observed that the colour schemes used for safety or age indication (e.g., bars with age appropriateness) are not exclusive and do not infringe unless proven to be uniquely associated with a single source ["METIS LEARNING SOLUTIONS PRIVATE LIMITED vs FLIPKART INDIA PRIVATE LIMITED & ORS. - Delhi"].
General Principles on Colour and Get-up - Courts have recognized that the overall combination of design elements, including colour, shape, and pattern, contribute to trade dress but are not protected if they are generic or commonly used. The courts have also emphasized that copyright protection cannot be claimed over simple shapes or commonly used design elements ["
ADLEESYA BEAUTY SDN BHD vs NORDLEEZ ENTERPRISE & ANOR - High Court Malaya Kuala Lumpur
"], ["ADLEESYA BEAUTY SDN BHD vs NORDLEEZ ENTERPRISE & ANOR - High Court Malaya Kuala Lumpur
"].Practical Use of Colour and Instruction in Industry - In contexts such as election procedures or industrial processes, the courts have upheld that standardised use of colours and instructions (e.g., for polling or safety) reflects industry practice and does not constitute infringement or illegal activity ["
NURAZWA ISMAIL vs LAYTAC AUTO SDN BHD - Industrial Court Alor Setar
"], ["2024 Supreme(Online)(NGT) 1742"].
Analysis and Conclusion:The legal consensus indicates that using specific colours and instructions on a box as part of industrial or standard packaging practices is generally not infringing unless the colour scheme has acquired secondary meaning, is uniquely associated with a particular source, or is used in a deceptively similar manner to mislead consumers. Courts tend to differentiate between standard industry practices and distinctive trade dress. Therefore, employing colours and instructions in packaging as an industrial practice, without evidence of confusion or secondary meaning, is typically permissible and does not constitute infringement ["
CHESEBOROUGH MANUFAOTURING CO. v. KUDHOOS
"], ["METIS LEARNING SOLUTIONS PRIVATE LIMITED vs FLIPKART INDIA PRIVATE LIMITED & ORS. - Delhi"], ["IND00079354"].
