Unconventional Trademarks: Can Sounds, Smells, Colours And Other Non-Traditional Trademarks Be Protected In India?

• Published date: 03 April 2024
• Subject Matter: Intellectual Property, Trademark
• Law Firm: De Penning & De Penning
• Author: Gautham Balaji

In a conventional sense, trademarks generally consist of words, letters, numerals, logos or include a combination of these elements. A trademark acts as a source of commercial origin and helps in identifying the products (or) services of one entity from that of another. They play a crucial role in branding by establishing recognition and trust among consumers. Trademarks ensure that customers associate specific qualities and characteristics with a particular product or service.

In today's competitive market, there is a growing trend of businesses adopting new branding strategies to stand out from the crowd. One among these strategies is the utilisation of unconventional trademarks. Unconventional trademarks, also referred to as non-traditional trademarks, go beyond traditional symbols and include colours, smells and sounds among many others. These unconventional elements offer innovative ways for companies to connect with consumers and set themselves apart.

In India, the perspective on unconventional trademarks is evolving within the legal framework. As businesses explore new branding strategies, the Indian legal system is adapting to accommodate the protection of non-traditional trademarks. Understanding the significance and challenges of unconventional trademarks is crucial for businesses navigating the dynamic landscape of Intellectual property rights in India.

WHAT ARE UNCONVENTIONAL TRADEMARKS?

Unconventional trademarks encompass both visible and non-visible signs and include sounds, smells, colours, shape of goods, touch/texture, taste, motion/moving images, position marks etc. Apart from relying upon visual cues, unconventional trademarks rely on sensory experiences to evoke brand recognition. Unconventional trademarks engage other senses such as hearing, smell and touch to create memorable brand associations with consumers.

The significance of unconventional trademarks lies in their ability to offer innovative branding strategies in today's competitive market. With increasing consumer sophistication and evolving marketing trends, businesses are leveraging unconventional trademarks to create memorable brand experiences. For example, distinct sounds associated with brands like Netflix or NBC help consumers identify and connect with these companies beyond visual cues.

In modern branding strategies, unconventional trademarks play a crucial role in establishing emotional connections with consumers. They go beyond mere identification to evoke feelings, memories, and associations, enhancing brand loyalty and differentiation. By tapping into sensory experiences, unconventional trademarks enable brands to stand out in crowded markets and resonate with target audiences on a deeper level.

LEGAL FRAMEWORK AND CHALLENGES

The legal landscape governing Trademarks in India is primarily regulated by the Trademarks Act, and the corresponding Rules. As per the Act, the definition of a "Mark" includes a device (logo), heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. While the definition comprises a few unconventional trademarks, the Indian legal framework does present a few difficulties and challenges in obtaining registration for unconventional trademarks.

The Trademarks Act defines a 'Trademark' as a mark capable of being represented graphically which means that the primary requirement for a mark to be registered is that it must be capable of being represented graphically in paper form (or) digital form in order to qualify for registration. This poses a significant hurdle for unconventional trademarks such as smell and taste marks which are non-visual in nature and incapable of effective graphical representation. In other instances, such as a motion or multimedia mark, the representation may include a series of still images which, combined together, depict movement. The lack of specific guidelines on representation...