Non-Traditional Marks And Their Registration Challenges

Introduction

Regarding trademarks and intellectual property, the concept of "unconventional trademarks" has become interesting and dynamic. These signs frequently straddle the boundary between the ordinary and the remarkable, defying conventional definitions. Unconventional trademarks are becoming more popular in India, a country known for its boundless inventiveness, and they are influencing the direction of branding and intellectual property protection in the future. This article explores the realm of non-traditional trademarks, including their classifications, well-known instances and obstacles associated with registration in India.

Comprehending Non-Traditional Marks

Often called non-conventional trademarks, unconventional trademarks are distinct from the typical or standard types of trademarks that we are accustomed to seeing, such as logos, brand names, or slogans. These non-traditional trademarks are typically associated with sensory experiences and perceptions that are unique to humans, like taste or scent markings. That's not all; let's take a closer look at each of the other categories of non-traditional trademarks.

Sound Marks: These trademarks consist of a series of melodic notes, unique sound patterns, or catchy jingles. The well-known Nokia song, which is easily recognized by its unique tone, is a prime example.

Color Marks: A product or service's related color, or a special combination of colors, defines these trademarks. A well-known example is the adoption of a specific shade of pink as an established color mark for Owens-Corning insulation.

Shape Marks: A product's or its packaging's three-dimensional form is covered by these marks. A prime example is the iconic Coca-Cola bottle shape, which has endured as a symbol of branding for decades.

Taste Marks: A product's distinct flavor or taste determines a taste mark. For instance, a particular combination of spices and herbs in a seasoning mix.

Smell Marks: Smell trademarks are derived from certain odors or perfumes connected to a brand or product. Smell markings are widely used in perfumes, scented candles, and aromatic items.

Motion Markings: Often observed in animated logos or particular motion sequences, motion markings entail dynamic movement. The roaring lion of the MGM logo is a famous motion mark that instantly conjures up images of grandiose film.

Hologram Marks: Hologram marks give branding a futuristic and alluring touch by using holographic pictures that shift or move depending on the angle at which they are viewed.

Unconventional Mark Registration Challenges in India

There are many obstacles involved with registering non-traditional trademarks in India, the main one being the need for graphical representation. A trademark is specifically defined as "a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others" in Section 2(zb) of the Trademarks Act, 1999. According to this definition, a trademark must be distinctive and easily recognized, and it must contain a visual or graphic feature that may be duplicated in tangible or digital forms.

Graphical representation

It is true that graphical representation of Sound Marks—which are a sequence of musical notes, jingles, or unique sound patterns—can be difficult. It's important to remember that they might be represented by writing down the musical notes or giving a thorough explanation of the sound. Because sound markings may be represented graphically, their registration process is comparatively easier in India than those of other non-traditional trademarks.

Even though color markings are visually identifiable, reproducing exact colors or combinations in graphical form is challenging since color perception is subjective. Three-dimensional shape markings, best represented graphically by classic designs such as the Coca-Cola bottle, are difficult to accurately portray in two dimensions due to their fine features. Furthermore, because taste and smell marks are non-visual and because these sensory experiences are subjective, complicated, and ever-changing, it might be difficult to represent them graphically. Animated logos present a hurdle in that motion marks, with their dynamic movements, might lose their identity when translated into static visuals. Though distinctive, marks determined by exact location on goods or packaging have difficulty finding exact graphical representations. Moreover, three-dimensional and sensory experiences such as taste, texture, and holographic marks pose a challenge to traditional graphic representation techniques.

Distinctiveness

To make matters more complicated, the criteria of distinctiveness is added. Because of their nature, unconventional marks might not always display this uniqueness. As was previously said, a lot of unusual marks are connected to human sensory impressions and experiences. People may find it difficult to remember or may readily mistake such marks for others from various sources due to the imperfection of human memory. This emphasizes how important it is to show that you have achieved distinctiveness through widespread use and market recognition. The combination of these variables poses significant challenges for the registration of non-traditional trademarks in India.

India is, nevertheless, gradually adjusting to the changing domain of non-traditional trademarks. The significance of these marks in modern branding has been acknowledged by the courts and the Intellectual Property Office. Prominent instances have established a standard for the registration of non-traditional marks, highlighting the necessity of interpretive flexibility. For example, the unique sound of the engine on a Harley-Davidson motorbike was identified as a sound mark. Similarly, the Kit-Kat's three-dimensional form was registered as a shape mark.

Conclusion

The idea of non-traditional trademarks in India is anticipated to become more well-known and accepted as the branding industry develops and pushes limits. It is expected that brands will persist in investigating novel approaches for safeguarding their trademarks, and the legal structure will adjust accordingly.

To sum up, non-traditional trademarks have changed how we view and safeguard intellectual property. Although the need for pictorial representation and distinctiveness may make registration of these marks particularly difficult, brand owners have hope because of the importance of well-known status and the changing legal landscape in India.

Disclaimer: This article was first published in the S&A Law Offices - 'Intellectual Property (IP-Tech)' newsletter in June 2024.