By Lucy Rana and Ananyaa Banerjee
Two harms, two regimes
When a new product appears on the shelf dressed to resemble an established brand, it can cause two different kinds of harm, and Indian law addresses them through two different bodies of rule. The first harm is to the brand owner and to consumers who are misled as to source — the domain of trade mark law and the tort of passing off. The second is to consumers’ broader interests in accurate information and safe food — the domain of food-safety and consumer-protection regulation. A single lookalike can implicate both at once, which is why these disputes often sit at the intersection of the two regimes.
A lookalike pack asks two questions at once: whose brand is this, and is the consumer being accurately and safely informed? Indian law answers them through different regimes.
The intellectual-property dimension: passing off and trade dress
Brand identity in packaging is protected in two ways. A registered trade mark is protected against use of identical or deceptively similar marks under the Trade Marks Act, 1999, and courts have read that protection to extend to packaging and get-up. Even without registration, the common-law action of passing off protects the goodwill embodied in a product’s distinctive “trade dress” — its overall appearance, colour scheme, layout and presentation — against misrepresentation that is likely to deceive.
The governing test is long settled. In Parle Products v. J.P. & Co. (1972), the Supreme Court held that competing packaging is to be judged by its overall impression rather than by placing the two side by side and hunting for differences, from the standpoint of a consumer of average intelligence and imperfect recollection. Later decisions built on this: the deceptive-similarity factors elaborated in the Cadila line of cases, the protection of distinctive colour combinations, and the recognition that get-up and presentation can be as valuable as the name itself. More recent rulings have reinforced that, for fast-moving consumer goods and food in particular — where purchases are quick, visual and made by consumers of varying literacy — a relatively low threshold of deceptive similarity applies, and that copying the essential features of a trade dress while making minor cosmetic changes (“smart copying”) does not escape liability.
The food-safety and consumer dimension
Running alongside the IP analysis is a regulatory regime with a different purpose. The Food Safety and Standards Act, 2006, administered by the Food Safety and Standards Authority of India (FSSAI), together with the labelling and display regulations made under it, governs how packaged food must be labelled — mandatory declarations, accurate descriptions, and the prohibition of misleading representations. Consumer-protection law, including the framework overseen by the Central Consumer Protection Authority, separately addresses misleading advertisements and unfair trade practices. These rules do not exist to allocate brand ownership; they exist to ensure that consumers are accurately informed and not deceived or endangered.
The two regimes are therefore complementary rather than interchangeable. A lookalike may be actionable as passing off or trade mark infringement because it misappropriates another’s goodwill, and separately relevant to the food-safety and consumer framework because it may mislead consumers as to the nature, quality or origin of what they are buying. For businesses — both established brand owners and new entrants — the practical point is that packaging decisions in the food sector are assessed against both bodies of law at once, and that the visual imitation of a familiar pack carries exposure on more than one front.
Frequently Asked Questions
Lookalikes on the Shelf FAQ
Yes. The common-law action of passing off protects the goodwill in a product’s distinctive trade dress — its overall get-up, colour scheme and presentation — against misrepresentation likely to deceive, independently of registration.
By the overall impression test set out in Parle Products v. J.P. & Co. (1972): the packaging is judged as a whole, from the perspective of a consumer of average intelligence and imperfect recollection, rather than by cataloguing minor differences.
Not necessarily. Courts have held that copying the essential features of a trade dress while making cosmetic changes (“smart copying”) is still copying, and that the presence of a house mark does not by itself dispel confusion.
The Food Safety and Standards Act, 2006 and FSSAI’s labelling regulations govern accurate labelling and prohibit misleading representations. They address consumer information and food safety, which is a different question from brand ownership — so a lookalike can raise both IP and food-safety issues.