Ordinarily, the trademarks are defined as a mark which is unique to the product and was identified with its origin of the product. These marks can be device marks, wordmarks, numeral etc. However, an unconventional trademark is the type of trademark which does not fall in the category of conventional or traditional trademarks.
The unconventional trademark is mainly in the form of sound marks, shape marks, smell marks, or colour marks. The unconventional mark possesses the communicative ability to differentiate in goods and services of one from another. The mark must have the potential to be distinctive; it must indicate source and thereby distinguish the goods or services from others.
Unconventional Marks in India
The new trademark rules came into existence on March, 6th 2017 for Registration of unconventional marks. These new trademark rules provide Registration of sound marks under Rule 26. Sound marks can get registered by submitting the sound clip along with the musical notations. Colour marks can be applied for by submitting the reproduction of the combination of colours.
The onus must lie on the Applicant to show that colour or sound has acquired distinctiveness or has secondary meaning due to continuous bonafide usage. However, for smell mark registration, there is no provision till date.
Case Law Interpretation
The Indian judiciary has been acknowledged colour as a part of trade dress and provided protection to Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd. Trademark registration has evolved around mostly on the conventional subject matter, i.e. something which has visual and consists of words or devices. The Registration of unconventional trademarks is for smells marks, colour marks sound and shape marks.
Types of Unconventional Marks
Unconventional marks are different from the traditional trademarks and are not restricted to a device, word or logo. It can be in any form like sound, shape, colour, moving images or even smell. This is new and innovative, in addition to the seasoned concept of traditional trademarks. The TRIPS Agreement has introduced the concept, and all the countries are amending the IPR laws to include and adopt a concept of unconventional trademarks in the respective IPR regimes.
Read our article:Process of Trademark Registration: Step by Step Guide
Some of the Unconventional marks have been known over a period of time, which are as follows:-
In India, trademark law is very closely related to commerce and has kept pace with changing times. The Indian Trade Marks Act, however, does not explicitly says that all sounds can be trademarked, but it has been established by the recent case laws that trademark shall be “capable of being represented graphically” besides capable of being distinct. Thus, a trademark can consist of a sound and be represented by a series of musical notes, with or without words.
As a new concept, it has been made clear that no sound marks will qualify for acceptance without evidence of distinctiveness. If the sound is able to establish its distinctiveness, the consumers can recognize a brand simply by listening to the sound like as the tunes of Nokia or Microsoft. Then it qualifies for an online Trademark registration in India. Yahoo!’s yodel was being the first sound mark that was registered in India.
Any sign which gives a meaning or message and can also be distinguished by our senses can be trademarked. The colour can be perceived by our visual senses, which can be interpreted to give distinct meaning. Therefore it becomes eligible to be registered as a trademark.
The combination of colours can make the mark look distinct and recognizable. For instance, the purple wrapper of Cadbury has been in use since a long period of time. Hence it has developed a secondary meaning now. This is the feature by which people can now differentiate Cadbury from other brand chocolates.
The scent marks or smell are the toughest to register as it cannot be directly represented graphically. One can state its proximity to smell like the smell of baked bread or a fish, but fails to give an exact description of it. Hence, this is almost impossible to convey in a written form. This also cannot be recorded like as sound marks. Therefore the representation of scent marks is very confusing and subjective. The best method is to graphically represent the scent marks by submitting the chemical formulae and composition along with the standard information required to reproduce an exact scent mark.
The following are the points that determine the registrability of a scent mark:
- The Applicant must be the only person marketing the goods concerned;
- The fragrance must not be an inherent attribute or natural characteristic of the goods, but a feature supplied by the Applicant;
- The Applicant must emphasize and promoted the scent mark in advertising
- The Applicant must able to prove that customers dealers and distributors of its products
The motion mark is an animated moving logo or hologram that is adopted to expatiate the marketing reach to attract consumer attention. If a mark can be graphically represented and fulfils the eligibility criteria to be registered as a trademark, then there is no issue in getting it registered. It can be presented by depicting a series of movements by arranging the images in a sequence creating an illusion of movement. As in a motion mark, the motion and the succession of images are pivotal. The Microsoft logo that flutters like a flag is an example of one such registered motion mark.
The new trademark rules have laid down the procedure for an application of unconventional marks. However, there is a need for a law to catch up with modern marketing techniques that use colours, scents, shapes, and sounds to make their product distinctive. If any unconventional mark is distinctive and not functional, it must be given trademark protection.
Unconventional trademarks will attract a new variety of customers who get closely connected to the feel of a trademark rather than its visual appeal. Unconventional trademarks will also help an ordinary consumer with imperfect recollection and identify any product which would usually not be able to differentiate between. To grant unconventional trademarks to companies will act as an incentive for other undertakings for developing new and innovative ways of branding and marketing of goods.
Read our article:An Overview on Document Required for Trademark Registration