INDIA Law and Practice Contributed by: Mohit Goel, Sidhant Goel, Aditya Goel and Mehr Bajaj, Sim and San, Attorneys at Law
Overlap Between Design and Trade Dress Indian law permits overlap between design and trade dress protection. While design rights safeguard novel aesthetics for a limited term, trade dress may endure indefinitely upon acquiring distinctiveness. In Carls- berg Breweries v Som Distilleries and Mohan Lal v Sona Paint , the Delhi High Court confirmed that design and passing off claims may coexist, provided the product appearance has evolved from merely aes- thetic to source-identifying. This dual protection has become increasingly significant for packaging- and design-driven industries. 4.2 Requirements for Protection Industrial Designs Protection under the Designs Act, 2000 requires a design to be new or original, visually appealing, and capable of industrial application. The design must not have been previously published or disclosed any- where in the world before the filing or priority date. Only aesthetic, non-functional features such as shape, configuration, pattern or ornamentation are protect- able; features dictated solely by technical function are excluded. India follows a registration-based regime, and unregistered industrial designs do not enjoy statu- tory protection. Trade Dress Trade dress is protected under the Trade Marks Act, 1999 and common law passing off. Protection requires distinctiveness (inherent or acquired) and non-func- tionality, enabling the product’s appearance, packag- ing, get-up or colour scheme to identify its commercial source. Unregistered Rights Unlike designs, unregistered trade dress is enforce- able through passing off by establishing goodwill, misrepresentation and resulting damage. Registration strengthens enforcement but is not essential for trade dress protection. 4.3 Registration and Term Design applications are filed before the IPO, exam- ined for novelty and registrability, and published in the official journal. There is no pre-registration opposition mechanism.
organisation and overall program architecture as potentially infringing. The idea-expression dichotomy limits protection; functional concepts, algorithms and elements dictated by technical necessity remain unprotected. 3.9 Collective Management and Licensing Copyright societies – namely IPRS, PPL and ISAMRA – administer rights and collect royalties under Section 33 of the Copyright Act, 1957. Tariff schemes under Section 33A must be fair, reasonable and non-dis- criminatory. Statutory licensing mechanisms include Section 31D (broadcasting), Section 31C (cover ver- sions) and Sections 32 and 32A (educational use and translation). None of the existing statutory mechanisms contem- plate the use of copyrighted works as AI training data. The DPIIT Working Paper on Generative AI and Cop- yright (December 2025) signals movement toward a structured blanket licensing framework for AI training data. 4. Industrial Designs and Trade Dress 4.1 Legal Framework and Protectable Subject Matter Industrial designs in India are governed by the Designs Act, 2000 and Designs Rules, 2001, protecting the vis- ual appearance of products that appeal solely to the eye, such as shape, configuration, pattern, ornamen- tation, colour combinations and packaging. Protection extends to product shapes, containers, decorative features and aesthetic layouts, provided they are new or original and not previously disclosed. Functional features dictated solely by technical necessity remain excluded. Trade dress is protected under the Trade Marks Act, 1999 through infringement and passing off. Although not expressly defined, it encompasses product shape, packaging, get-up, colour combinations and the over- all “look and feel” of goods or services that function as source identifiers. Protection depends on distinc- tiveness, whether inherent or acquired, and does not extend to purely functional features.
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