Q

Non-Conventional Trademarks in India

A non conventional trademark includes both tangible signs like colours, shapes, moving images, holograms and positions or intangible signs like sounds, scent, taste and texture, which identify the product or service.

In this scientific know-how world where the business is moving at a steady pace enticing the customers to gain their attention by devising unique identities, non-conventional trademarks are of recent origin.

A conventional trademark customarily dwell and consist of letters, words, logos, pictures, symbols, numerals or a combination of one or more of these elements.

However, a non-conventional trademark is not bracketed in the same parameters. Trademark registries and courts deal with trademarks applications for:

  • Silhouettes
  • Shapes
  • Scents
  • Textures
  • Tastes
  • Single colours inclusive of short cartoons.

 

The stepping over the conventional is a result of the open-ended definition of a trade mark. 

 

What is the scope of Trademarks?

Trademark encompasses a definition which emphasizes the functional status of a sign rather than on the ontological status.

Anything that does the communicative work of a trademark, by casting a difference between the goods on the basis of trade origin can be registered as a trademark.

 Over time, the registration system has changed and developed historically around quintessential subject matter – a conventional or traditional trademark constituting of figurative devices or words.

What is a Non-conventional Trademark?

A non-conventional trademark, also referred as a non-traditional trademark, is a new genre of trademark not belonging to the former conventional league of trademark.

Some features of such trademarks are:

  • They are challenging to be registered, yet have a unique identification of the commercial origin of the product or service.
  • They include marks based on appearance, shape, sound, smell, taste and texture. Non-conventional trademarks thus can be both:

Tangible signs: Colors, shapes, moving images, holograms, positions

Intangible signs: Sounds, scent, taste, texture

Examples of Non- Conventional Trademarks

India’s recognition of such marks is a streak of the maturing intellectual property regime in the country.Some example of Non- Conventional trademarks are:

What constitutes a non-conventional trademark?

 

Colour

The graphical representation of the colour must be precise, clear, easy, self-contained, easily accessible, durable and objective which is known as Sieckmann criteria.

While considering the registration of colour per se as trademark personal interest of a single trader has to be weighed against the public interest of not unduly restricting the availability of colours of all traders.

Distinctiveness without prior use is unlikely to be present in a colour per se mark other than in exceptional circumstances. However acquired distinctiveness may be present.

 

Graphical Representation

 Graphical representation of the sign must be such representation of the mark that it can elucidate the mark itself in order to determine the rigorous subject of the protection afforded by the registered mark to its proprietor.

After which, the entry of the mark in a public register has the aim of making it accessible to the competent authorities and the public, particularly to economic operators.

The Object of the representation is specifically to avoid any element of subjectivity in the process of identifying and perceiving the sign.

 

Sound Marks

This depends on the audile i.e. the hearing perception of the listener which may be as momentary as the sound itself.  

If a sound hobbles in the mind of the listener and is so intrinsically different or distinctive that it causes the mind of the listener to be aroused when heard and the listener consequently associates a source or event with that sound then the sound may be qualified for a trademark.

It can be represented graphically, particularly by means of images, lines or characters, and that its representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.

Those requirements are satisfied where the mark is represented by a counteract divided into measures and showing, in particular, a clef, musical notes and rests whose form indicates the relative value and, where necessary, accidentals.  

Echoic specification or mere sequence of musical notes would not be sufficient for the purposes of graphical representation for the pitch and duration of the mark cannot be determined by them.

 

Smell Marks

Smell of rose for tyres, smell of freshly cut grass for Tennis balls The odour of beer for dart flights Smell of plumeria blossoms for yarn Smell of vanilla for office files Cherry scent for synthetic lubricants.

Trademark may constitute a sign not capable of perceived visually but of being represented graphically.

The graphical representation must facilitate the sign to be visually represented by way of images, lines or characters so that it can be precisely defined.

Representation should be apparent, explicit, durable, self-contained and easily assessible. 

Core requirements for registering a Non conventional trademark

The core requirements for registering are:

  • Substantial distinctive character
  • Non-functional procedural graphical representation

However, in a case where a distinctive character has been acquired- the use made of it. It should not exclusively constitute of the shape resulting from the nature of the goods themselves.

 


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