Non-conventional Trademarks

The domain of Intellectual property rights has seen advancements, especially with respect to trademarks. The trademarks have played a very significant purpose in the domain of intellectual property rights and also in the advancement of society. Traditionally, the marks were provided protection and were registered in cases of graphical representation, designs, and logos. Recently, with the development of innovation and technology, there have been certain emerging trends with respect to the registration of a trademark that has been classified as outside the scope of being registered in terms of graphical representation.

The advertisements on television and all other social media platforms, enable us in recognizing the products as trademarks too. For instance, a jingle on the television ‘ting tiding’ and we recognize that it’s the advertisement for Britannia biscuits. Similarly, when we are handed bottles of perfumes, we instantly sense that it is a perfume, and even in cases of Versace shirts, which have a patented print on the shirts, enabling the customers to recognize that it is ‘Versace’. So how are these senses developed? These senses are developed because of the fact of branding, and also which goes beyond their already registered trademarks. Hence, the marks which have not been included in the traditional set of marks can be sensed or recognized through touch, smell, color, shape, texture, and sound are referred to as unconventional trademarks. These are the new types of marks that have been designated as marks, which do not fall within the definition of trademarks i.e., the marks are not included in the ambit of existing statutory legislations.

However, even if there are no appropriate sections on the protection of unconventional trademarks, they can be analyzed and registered, if the marks have the characteristics of distinctiveness. On the other hand, the Singapore Treaty on Law of Trademarks, 2006 has reflected the need for policymakers for facilitating the registration of traditional and non-traditional marks. This extension of the domain of trademark protection to the non-traditional marks has to be placed in the context of modern branding and marketing strategies. The various types of marks that can be categorized into non-conventional marks are:
Olfactory marks are marks that cannot be perceived visually. As the marks are unable in providing a visual representation, there are concerns being raised on the registration and protection of the smell products. However, there are countries that have successfully provided protection to the smell marks, but the registration in itself has been a difficult process because of the difficulties in the process due to the inabilities of being graphically represented.
Taste marks are the marks that are most difficult to be registered in comparison with the other non-conventional trademarks. However, there are countries that have been successful in registering their marks as smell marks with the purpose of identifying their products by flavors in the commercial markets.
Motion trademarks are the marks that are registered with respect to moving pictures, videos, cinematography, video clips of documentaries and films, etc. Some of the renowned motion trademarks are 20th century Fox Movies, Columbia Pictures, Microsoft windows, etc. currently, there has been a rise in the registration of such marks.
Touch marks are the kind of marks that are identified on the basis of the unique texture and outer appearance they perceive. Such marks would only be qualifying for registration if they exhibit a different meaning and a mere ornamental packaging of products and services i.e., they must be distinctive.
Colour trademarks have been categorized as the marks which have a distinctive colour for a particular product, goods, and service. The registration of these marks can pose challenges to the other forerunners and further restrict them from using the mark. For example, the royal purple shade for Cadbury has been the registered colour mark.
A shape trademark is a type of trademark, which can be protected with respect to the shape of a particular product. However, there are difficulties in registering such as marks because of its inability in graphical representation as well as in distinctiveness. However, there are companies that have been granted trademarks on shapes, namely the shape of Coca-Cola bottles, Apple has been granted a shape trademark on its product namely iPod.
Sound marks have been classified as the marks which are auditory in nature. Among all the other non-conventional trademarks, sound marks have been the most registered and protected ones and are also gaining popularity. For example, Audi’s heartbeat sound logo, McDonald’s sound mark ‘I am lovin’ it, and many others.

The use and the registration of unconventional trademarks have been increased and there has been a paradigm shift in the branding strategies of the companies which have enabled them in adopting and registering unconventional marks. In reference to the legal position of unconventional trademarks in India, there have been no specific sections pertaining to their registration, but the unconventional trademarks are slowly making their way in the Indian jurisprudence. Some of the examples of the sound marks are that of the company Yahoo on their three-note yodel, then ICICI Bank’s corporate jingle. For a sound to be registered as a trademark, any chime or a musical composition not extending to 30 seconds should be sent to the Office of the registrar of the trademarks office under Section 26(5) of the Trademarks Act, 1999. The registration for color marks can be done through Section 26(2) of the Act.

Henceforth, it can be concluded by saying that with a wider increasing significance of unconventional trademarks, there is a need for making subsequent amendments to the Act for the purpose of providing legal recognition to the unconventional trademarks.