{"id":17770,"date":"2020-10-12T16:13:56","date_gmt":"2020-10-12T10:43:56","guid":{"rendered":"https:\/\/corpbiz.io\/learning\/?p=17770"},"modified":"2020-10-12T16:26:49","modified_gmt":"2020-10-12T10:56:49","slug":"unconventional-marks-in-india-not-an-ordinary-trademark","status":"publish","type":"post","link":"https:\/\/corpbiz.io\/learning\/unconventional-marks-in-india-not-an-ordinary-trademark\/","title":{"rendered":"Unconventional Marks in India- Not an Ordinary Trademark"},"content":{"rendered":"\n

Ordinarily, the trademarks are defined as a mark which is\nunique to the product and was identified with its origin of the product. These\nmarks can be device marks, wordmarks, numeral etc. However, an unconventional\ntrademark is the type of trademark which does not fall in the category of\nconventional or traditional trademarks.<\/p>\n\n\n\n

The unconventional trademark is mainly in the form of sound\nmarks, shape marks, smell marks, or colour marks. The unconventional mark\npossesses the communicative ability to differentiate in goods and services of\none from another. The mark must have the potential to be distinctive; it must\nindicate source and thereby distinguish the goods or services from others. <\/p>\n\n\n\n

Unconventional Marks in India<\/h2>\n\n\n\n

The new trademark rules came into existence on March, 6th\n2017 for Registration of unconventional marks. These new trademark rules\nprovide Registration of sound marks under Rule 26. Sound marks can get\nregistered by submitting the sound clip along with the musical notations.\nColour marks can be applied for by submitting the reproduction of the\ncombination of colours. <\/p>\n\n\n\n

The onus must lie on the Applicant to show that colour or\nsound has acquired distinctiveness or has secondary meaning due to continuous\nbonafide usage.  However, for smell mark\nregistration, there is no provision till date.<\/p>\n\n\n\n

Case Law Interpretation <\/h3>\n\n\n\n

The Indian judiciary has been acknowledged colour as a part\nof trade dress and provided protection to Colgate Palmolive Company v. Anchor Health\n& Beauty Care Pvt. Ltd<\/em><\/strong>. Trademark registration has evolved around\nmostly on the conventional subject matter, i.e. something which has visual and\nconsists of words or devices. The Registration of unconventional trademarks is\nfor smells marks, colour marks sound and shape marks. <\/p>\n\n\n\n

Types of Unconventional Marks<\/h2>\n\n\n\n

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<\/em><\/strong>[1]<\/em><\/strong><\/a><\/sup> laws to include and adopt a concept of unconventional trademarks in the respective IPR regimes.<\/p>\n\n\n\n

Read our article<\/b>:Process of Trademark Registration: Step by Step Guide<\/a><\/mark><\/p>\n\n\n\n

Some of the Unconventional marks have been known over a period of time, which are as follows:-<\/em><\/strong><\/p>\n\n\n\n

\"Unconventional<\/figure><\/div>\n\n\n\n

Sound Mark<\/h3>\n\n\n\n

In India, trademark law is very closely related to commerce\nand has kept pace with changing times. The Indian Trade Marks Act, however,\ndoes not explicitly says that all sounds can be trademarked, but it has been\nestablished by the recent case laws that trademark shall be “capable of\nbeing represented graphically” besides capable of being distinct. Thus, a\ntrademark can consist of a sound and be represented by a series of musical\nnotes, with or without words. <\/p>\n\n\n\n

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<\/strong><\/a>. Yahoo!’s yodel was being the first sound mark that was registered in India.<\/p>\n\n\n\n

Colour Mark<\/h3>\n\n\n\n

Any sign which gives a meaning or message and can also be\ndistinguished by our senses can be trademarked. The colour can be perceived by\nour visual senses, which can be interpreted to give distinct meaning. Therefore\nit becomes eligible to be registered as a trademark. <\/p>\n\n\n\n

The combination of colours can make the mark look distinct\nand recognizable. For instance, the purple wrapper of Cadbury has been in use\nsince a long period of time. Hence it has developed a secondary meaning now.\nThis is the feature by which people can now differentiate Cadbury from other\nbrand chocolates.<\/p>\n\n\n\n

Scent Mark<\/h3>\n\n\n\n

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. <\/p>\n\n\n\n

The following are the points that determine the registrability of a scent mark:<\/em><\/strong><\/p>\n\n\n\n