Dabur vs Emami: Delhi High Court Upholds Trade Dress Injunction for Deceptively Similar Packaging

The Delhi High Court on 22nd May 2026 dismissed Dabur India Limited's appeal against an injunction restraining it from selling its cooling oil product Cool King Thanda Tael in packaging found to be deceptively similar to Emami Limited's well-known Navratna Ayurvedic Oil. A Division Bench comprising Justices Kameswara Rao and Manmeet Pritam Singh Arora upheld the single judge's finding that Dabur's trade dress constituted passing off and was a deliberate imitation of Emami's distinctive packaging that has been in continuous use since 1989. The judgment is an important reaffirmation of trade dress protection in India's FMCG sector and provides guidance on how courts assess deceptive similarity in product packaging.

What Is Trade Dress and Why It Matters in FMCG

Trade dress refers to the overall visual appearance and commercial image of a product, encompassing its packaging design, colour scheme, shape, layout, graphics, and labelling. Unlike a trademark that protects a specific word or logo, trade dress protects the total look and feel that consumers associate with a particular brand. In the FMCG sector, where products compete for attention on crowded retail shelves and consumers often make split-second purchasing decisions based on visual recognition, trade dress is a critical form of intellectual property. A competitor who adopts a substantially similar trade dress can divert sales by confusing consumers into purchasing the wrong product, a practice known as passing off under Indian trademark law.

The Evidence of Deceptive Similarity

Emami presented detailed evidence showing that Dabur's Cool King product adopted multiple distinctive elements of the Navratna trade dress: a red colour scheme, a similarly shaped transparent bottle, a flip-top cap, depiction of hibiscus flowers, ice cubes, and ayurvedic herbs, and an overall red, white, yellow, and gold layout. The Court found that these similarities, taken together, created a likelihood of consumer confusion. The Division Bench observed that trade dress infringement must be assessed by looking at the overall visual impression rather than dissecting individual elements, and that the cumulative effect of Dabur's packaging was deceptively similar to Navratna's established trade dress. The Court noted that Emami's Navratna oil has been marketed with this trade dress for over 35 years, giving it significant acquired distinctiveness.

Legal Principles Affirmed

The judgment reinforces several key principles of Indian trade dress law. First, the overall impression test remains the standard for assessing deceptive similarity in trade dress cases; courts will not accept the defence that individual elements are common to the trade if the overall combination is distinctive. Second, long and continuous use of a trade dress creates strong acquired distinctiveness that competitors cannot appropriate. Third, the standard of the average consumer with imperfect recollection applies, meaning courts assess confusion from the perspective of an ordinary buyer who does not have both products side by side. Fourth, the adoption of multiple distinctive elements of a competitor's trade dress, rather than just one or two, strongly supports an inference of deliberate imitation.

Practical Takeaways for Businesses

Companies launching new FMCG products should conduct thorough trade dress searches and clearance checks before finalising packaging design. Adopting colour schemes, bottle shapes, graphic elements, and layout patterns that closely resemble an established competitor's trade dress, even with a different brand name, exposes the company to injunction and damages claims. Companies with established trade dress should document their design history, date of first use, and marketing expenditure to build strong evidence of acquired distinctiveness. Early legal action through interim injunctions, as Emami did, remains the most effective remedy in trade dress cases because the damage from consumer confusion is often irreversible by the time a full trial concludes.