trademark
source: https://www.lawdonut.co.uk/business/intellectual-property/intellectual-property-faqs

What is Intellectual Property Rights?

The concept of Intellectual Property Rights comes into the picture when we talk about any kind of trademark. IPR gives the ownership rights to any person, who designs, or builds any creative or innovative product, to own that idea in the same manner as any other physical product.

Trademarks Act, 1999

The first-ever law in India relating to trademarks was the Trade and Merchandise Act, 1958. It was further replaced by Trade Marks Act, 1999 which defines a trademark as ‘a mark which can be represented graphically and is capable of distinguishing the goods or services of an individual from those of others.’ In other words, the protection of words and design elements that identify the source, owner, or developer of product or service is well assured by trademark. It can be a name, word, symbol, phrase, design, logo or a picture that denotes a specific product and legally differentiates it from other similar products. (1)

What are unconventional trademarks?

TRIPS agreement introduced the concept of ‘unconventional trademarks’ and since then all the countries are amending their IPR laws to incorporate the concept of unconventional trademarks in their IPR model.

An unconventional trademark is a new and a distinct type of trademark which does not fall under the pre-existing category of traditional trademarks. However, just like conventional trademarks, these trademarks also idiosyncratically identify the commercial origin of the products and services. These are mainly in the form of sound, smell, shape or colour marks.  The marks should potentially be distinctive and must be able to distinguish the concerned products from the others. (2)

Introduction of new trademark rules, 2017

The new trademark rules, 2017 which ousted the Old trade mark Rules, 2002, ushered in a new era for registration of unconventional trademarks. (3)  The new rules provide that the sound marks can be registered by submitting the distinct sound clip along with is notations. Colour marks can be registered by submitting a reproduction of the combination of colours. The owner will be liable to prove that the colour or the sound submitted for registration is exclusively associated with their product or service. A mark can also be applied for registration under unconventional trademark. It can be added if it has acquired discreteness due to its unadulterated usage for a longer period of time. (4)

Requirements for trademark registration

The major requirements to register a trademark are:

  1. Firstly, the traders should be aware of what other traders have already applied for;
  2. Secondly, the mark must enable the public to recognize the subject matter of the registration
  3. And finally, the mark should be capable of graphical representation. (5)

India has managed to make several accommodations for the graphical representation such as sounds and colour marks but several irregularities remain to be settled.

There arise quite a number of challenges to register unconventional subject matter. However, the registration of colour marks is not very difficult as compared to the smell or sound marks. If the applicant manages to prove that the colour or combination of colours has acquired distinctiveness after being in usage for a longer time. For example, Cadbury’s distinct shade of Purple was granted registration in 2012.  Graphical representation of colour is within the reach by referring to nay international system from Pantone to RAL.

India has acknowledged colour as a valid trademark in the case Colgate Palmolive Company v. Anchor Health and beauty care

Final Thoughts

The new trademark rules have substantially laid down the procedures for application of unconventional trademarks. However, the still needs to match up with the ever-evolving marketing techniques. These techniques include the use of colours, shapes, odours and sounds to make their product unique. Therefore, trademarks will definitely attract a wide variety of customers. And, these customers connect to the feel of the trademark rather than its visual appearance.


Author:

tushar srivastava Tushar Srivastava | Amity Law School, Noida


Works Cited

  1. [Online] https://www.khuranaandkhurana.com/2019/02/15/position-of-unconventional-trademarks-in-india/.
  2. [Online] https://www.mondaq.com/india/trademark/597356/unconventional-trademarks-in-india.
  3. [Online] https://medium.com/legis-sententia/graphical-representation-and-indian-trademark-law-bbaa610ef401.
  4. [Online] https://www.mondaq.com/india/trademark/597356/unconventional-trademarks-in-india.
  5. [Online] https://blog.ipleaders.in/unconventional-trademarks-overview-and-analysis/.

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