Author – Akancha KailashBBA.LLB9th Semester Amity University Ranchi, Jharkhand
TOPIC:
Beyond Logos: The Untapped Potential and Challenges of Non-Traditional/Conventional Trademarks in India
Introduction-
Trademarks, in a literal sense, usually comprise words, letters, numbers, or signs or comprise a combination of these elements. A trademark is considered a source of marketable origin and serves to differentiate the products(or) services of one reality from those of another. They form an important role in imprinting by establishing recognition and trust among consumers. Trademarks ensure that guests associate specific rates and characteristics with a particular product or service.
In the present-day competitive demand, there is a growing trend of businesses touting new branding strategies in a bid to stand out in the crowd. Among them is the use of non-traditional trademarks. Non-traditional trademarks, also referred to as a non-traditional trademark, extend beyond the use of traditional symbols and includes colours, smells, sounds among many others. Such non-traditional ingredients give companies new ways in which they can reach the consumer and differentiate themselves piecemeal.
In India, the concept of non-traditional trademarks is changing within the legal framework. As business houses are looking for new ways to brand themselves, the Indian legal system is also adapting to include the protection of non-traditional trademarks. Understanding the importance and difficulties of non-traditional trademarks is crucial for business houses in the dynamic geography of Intellectual property rights in India.
What is Unconventional trademark?
Unconventional trademarks cover visible and non-visible signs, and encompass sounds, smells, colours, shape of goods, touch/texture, taste, stir/moving images, position marks etc. aside from relying on visual signs, unconventional trademarks rely on sensitive gests to stimulate brand recall. Unconventional trademarks use other senses like sound, smell, and touch to create memorable brand associations with the consumers.
The importance of non-traditional trademarks lies in their ability to provide innovative branding strategies in the current competitive demand. By adding consumer complexity and ever-changing marketing trends, companies use non-traditional trademarks to create memorable brand gestures. For example, different sounds that are often linked to brands such as Netflix or NBC can make consumers easily recognize and connect with them, aside from visual representations.
In ultramodern branding strategies, unconventional trademarks play a pivotal part in establishing emotional connections with consumers. They go beyond bare identification to elicit passions, recollections, and associations, enhancing brand fidelity and isolation. By tapping into sensitive gests, unconventional trademarks enable brands to stand out in crowded requests and reverberate with target cult on a deeper position.
Legal Framework and Challenges
Legal geography concerning trademarks is administered by the Trademarks Act and the Rules. To the act, the description of “Mark” includes a device(totem), heading, marker, ticket, name, hand, word, letter, numeric, shape of goods, packaging or combination of colours or any combination thereof. Although the description comprises a many unconventional trademarks, the Indian legal frame does present a many difficulties and challenges in carrying enrolment for unconventional trademarks. The Trademarks Act defines a ‘Trademark’ as a mark able of being represented graphically, which means that the primary demand for a mark to be registered is that it must be able of being represented graphically in paper form(or) digital form to qualify for enrolment.
This creates a long chain for un-conventional trademarks such as smell and taste marks, which are not visual and therefore cannot be represented effectively in graphics. In other instances, such as a stir or multimedia mark, the representation may comprise a series of still images which, together, create the illusion of movement. There is no clear guideline on the representation of similar marks, raising a question in the minds of interpreters. Hence, a multitude of unconventional trademarks fail to satisfy the first criteria of registration in India. The second one is the requirement of distinctness. except for an extremely large number of cases where a quintessentially distinctive mark gets registered, on-traditional trademarks must have acquired distinctness to be deemed eligible for registration. In such a script, it is difficult to prove that two marks differ because such types of marks often vary from conventional signs.
The burden of evidence in showing consumer recognition and association is tenuous compared to conventional trademarks. Similarly, doing quests for unusual trademarks is a laborious attempt since there are no harmonious hunt terms or canons present in the hunt database. There are no practical guidelines or measures to take over quests for similar marks and thus, it proves to be a tough assignment. also, furnishing precise delineations for unconventional trademarks is of consummate significance while applying for enrolment. Defining an unconventional trademark plays a pivotal part since squishy delineations might affect in lesser or lower extent of protection than intended for the mark. Coupled with the challenges mentioned over, the lack of established precedents and guidelines for non-traditional trademarks adds to the nebulosity girding their protection in India. While some authorities have espoused a liberal approach towards unconventional trademarks, India’s legal frame remains rigid and takes a conservative approach towards similar trademarks.
Types of Unconventional Trademarks
Sounds: Sound trademarks are distinctive audio rudiments which serve to identify the source of products or services sold in commerce. In India, a sound mark must be represented graphically by a course of musical notes, with or without words. It should be submitted in MP3 format and should not exceed 30 seconds. Sound marks have become popular over time, and now they play an important role in branding, contributing to consumer recognition and brand loyalty. Examples of famous sound trademarks include the jingles of companies such as Intel and Nokia, which are instantly recognisable to consumers worldwide.
With time, sound marks have received recognition and protection within the realm of trademark law globally. Most jurisdictions have established frameworks for the registration and registration of sound trademarks, acknowledging their value within contemporary marketing campaigns. In India, some examples of well-known sound marks include the Yahoo yodel and the commercial jingle of ICICI Bank.
Colours: Colours Colour trademarks involve the use of colours or colour combinations to identify the source of goods or services.
Colours can be an important marketing tool and allow businesses to create memorable associations with consumers. however, there are certain criteria that need to be fulfilled for registration of colour trademarks. While the Trademarks Act provides for enrolment of a combination of colours that are unique and contemporary, a single colour must have gained secondary meaning in connection with a product or service for which it is offered to qualify for enrolment. In a corner judgement and for the first time in re Owens- Corning Fiberglas Corp., 774 F.2d 1116(Fed. Cir. 1985), the U.S. Court of prayers honoured that a single colour trademark could be registered if it had acquired distinctness regarding a particular product.
It was the first case in which a single colour was honoured to perform the functions of a trademark. The Court decided that Owens Corning had acquired the right to help third parties from using the colour Pink in their fibreglass sequestration products since it had come to be solely associated with them. In India, some of the most exemplary examples of a single-colour trademark are the majestic colour of Cadbury, Red for Christian Louboutin Soles, Turquoise on Jewellery for Tiffany & Co. The example of the trademark complying of a combination of colours include Green and Yellow for Tractors made by John Deere.
Smell- Smell trademarks, though less common, are used to distinguish the olfactory characteristics of products or services. The enrolment of smell marks presents unique challenges, particularly concerning their graphical representation and distinctness. Unlike visual or audible rudiments, smells are innately private and may vary in perception among individualities.
Another requirement for smell marks is that the fragrance ought to be a novel element of the product and it should not serve a utilitarian element of the product or service.
For example – perfume or fragrance used on an incense(or) cream cannot be registered as a trademark. Despite these requirements, in jurisdictions such as the United States and United Kingdom, companies have managed to obtain smell trademarks registered. Most recently, a Dutch firm filed the scent of fresh-cut grass for its Tennis balls. Other notable examples include Bubble-goo-scented shoes and sandals, Strawberry-scented toothbrushes. In the Indian script, the legal scenario of smell trademarks is almost uncharted territory, with very few precedents or guidelines as to their registration and protection. There are currently no registered smell marks in India.
Shape of goods/3D marks These types of unusual trademarks basically comprise the looks of a product compliant of the shape of a product or its packaging. It does not comprise two- dimensional marks similar as a word, numeric or totem. The Trademark Act allows registration of the shape of goods and packaging as it meets the criteria of graphical representation. still, there are certain restrictions to the enrolment of a shape mark and the first condition is that the shape must not be a part of the nature of the product itself.
It must not be a means to gain a specialized result and should not add substantial value to the product. For illustration the round shape of a justice ball cannot be defended since it would form the veritably nature of the ball. While the enrolment of a shape mark is gruelling compared to conventional trademarks, these marks tend to have an advanced visual appeal and produce an unforgettable print among consumers. In Koninklijke Philips Electronics NV v. Remington Consumer Products Ltd. European Union Court of Justice (2002) ECR I- 5475, Case C-299/99(2002), Philips had filed violation action against Remington Consumer Products for selling trimmers with three headed rotary nippers for which Philips had obtained registration. The Respondent, thus applied for cancellation of the impugned trademark. The Court cancelled the enrolment of Philips by logic that the shape was necessary to gain a specialized result and that it was functional in nature.
Some notable exemplifications of shape and three- dimensional trademarks include the packaging of Toblerone chocolate, the shape of the Coca- Cola bottle for its silhouettes and lines, the Zippo lighters iconic shape.
Motion/Multimedia: Stir trademarks comprise of a series of moving rudiments not restricted to movie clips, moving ensigns of TV shows, vids and rudiments that keep on changing position. When such trademarks are combined with the audio, they are known as Multimedia marks. Although the Indian Act does not command enrolment per se, it fails to provide a feasible ground for accommodating stir trademarks because the graphical representation of the same is without well-defined criteria. As of now, a stir mark can be represented only in a series of still images. The Indian Office must begin accepting videotape clips of similar marks to understand the nature of the mark better.
The first stir trademark to be registered was way back in 1996, the time the USPTO provided protection for the notorious totem of a Woman carrying an arsonist owned by the giant Columbia Pictures. Stir trademarks are recognized in India, and its first ever to be awarded protection is Nokia’s Connecting hands of 2003. The Asian maquillages “AP stir mark” and Toshiba’s operation for its stir mark “TOSHIBA” are amongst the great illustrations.
Position: A position trademark is a trademark that comprises a specific way in which a mark is fixed or placed on a product. This includes both tropological and colour rudiments where possessors can claim exclusive rights over the way in which a marker or a sign is deposited on a particular part of a product. The first and foremost claim is a clear description of the position in the product. An example of the position trademark is the red colour at the sole of the bottom of Christian Louboutin’s shoes. There is relatively fewer literature on position trademarks and indeed in authorities overseas, the guidelines are under force.
In the Indian script, a recent example came in Levi Strauss & Co. v. Imperial Online Services Pvt. Ltd. & Ors., CS(COMM) 657/2021 & I.A. 16736/ 2021, wherein the Delhi High Court held that Levis had acquired secondary meaning in its ‘Arcuate Stitching Design’ on its Jeans due to expansive use gauging over 150 times.
Touch/Texture: When a product has a specific and distinct recognizable structure, the face of the product when touched must have a unique texture to be given protection. These are felt with the fingertips, and patterns and shapes fall into this category as well. This is a marketing strategy companies have been adopting lately to appeal to consumers who have been visually bloodied. The first texture mark to be registered was in 2004, when the Ecuadorian Institute of Intellectual Property granted protection over the face texture of its Old Parr Scotch whisky bottle to a notorious libation and alcohol manufacturer, Diageo, which had exclusive rights over. In the Indian environment, the legal position is at its incipient stage; however, it was for the first time bandied in Louis Vuitton v Malik CS(OS) 1825/2003. Louis Vuitton filed a case for infringement of its “EPI STYLE” trademark and face pattern in the Delhi High Court.
The EPI STYLE is the distinctive pattern of the grain of the leather on its handbags. The court allowed Louis Vuitton’s long and expansive use of the EPI pattern since themid-1980s granted a partner parted interim instruction in their favour.
taste- When a specific flavour is applied to a product, it is referred to as a taste trademark. The taste must be inherent to the product itself and must not perform the utilitarian function of the product. For example- a trademark for the taste of Biryani is not possible since it performs the function of making the Biryani. Another challenge in the enrolment of a taste trademark is graphical representation. The only way a taste can be represented is through written description which is not yet accepted in India. also, a practical chain is that for a consumer to witness a taste, the product must be bought first and it is insolvable to taste the product before purchase. Due to similar challenges, the taste trademarks in India are yet unexplored, and there are presently no enrolments for taste around the world.
Future Prospect and Challenges
Trademark law in India is being constantly expanded to accommodate the changing landscape of marketing strategies and branding practices. With the rise of unconventional trademarks in ultramodern marketing strategies, the legal framework must change to provide suitable protection and recognition.
Implicit changes and reforms in India’s trademark law might include the systematization of enrolment for unconventional trademarks, the supplying of proper guidelines on graphical representation, and judicial precedents, also a prerequisite for the enhanced consciousness and awareness on the part of the various stakeholders-business community, the legal professionals and consumers that would be helpful to ensure effective execution and administration of trademark rights.
Emanating trends in branding, like sensitive marketing and existential branding, further highlight the need for protecting unusual trademarks. Since technology is evolving continually, new challenges and avenues will come up, questioning innovative steps to protect intellectual property rights in the virtual age.
Several cases have shaped the landscape of non-conventional trademarks in India:
Yahoo! Inc. & Ors. v. Akash Arora & Anr. (1999) This is not a case that deals directly with on-conventional marks but has formed the base for the recognition of the “well-known” trademark in India, which forms the base for further interpretations of trademark protection.
Zippo Manufacturing Company v. Anil Moolchandani (2013) This case is about the design of the very popular Zippo lighter and its shape. This case includes the Delhi High Court celebrating the distinctness of the shape and granted the operation which paved way for shape marks in India.
Christian Louboutin SAS and others v Abubaker & others. (2018) This concerned the trade dress claim by Louboutin relating to the attempt to rectify the use of red sole. The Delhi High Court initially rejected single colour marks but the case has catalysed very relevant discourses on the registrability of colour as a trademark.
Future Opportunities and Developing Patterns
The landscape of non-conventional trademarks in India is rapidly changing with several trends emerging:
- Increased Recognition
This means that as business get further conscious with the possibilities of non-conventional marks, further marks of this nature are likely to be sought.
- Technological Advancements
This is particularly with regards to the representation and analysis of non-visual marks, whether new technology can present answers to the recognized issues.
- Adjustment with Global norms
With India progressing further in liberalization and opening of its frugality there could be gradational sweats to regularize Indian non-conventional approaches to trademarks with the global morals.
- Expansion to New sensitive Marks
While the sound and shape marks have come into recent limelight, there is also a potential that other sensitive marks, like the texture or taste, would gain more popularity soon.
- Development of Specialized Justice
In this way, the law pertaining to non-conventional marks is still evolving and one would presume that as adding figures of cases are litigated extraordinary marks a precipitously more technical governance of law will come into actuality.
Conclusion
The use of non-conventional trademarks in India could be said to be the coming step in the elaboration of the IPR terrain in the country. Since it happens in the environment of the contemporary business, the change marks a shift in brand and consumer relations. still, aspects related to representation, distinctness and enforcement are still problematic, but the legal frame of India has proved to be dynamic therefore, it can be noted that as the conception of brand identification is further developed and explored by colourful companies and as technologies for creating sensitive brand gests crop non-traditional trademarks are getting more significant. It will be for the coming times to decide how significantly these different types of sui generis IP protection will develop in India. It will thus be important to keep abreast with similar developments for brand possessors, legal interpreters as well as policymakers. It can be said that the on-conventional trademarks’ journey has just begun in the Indian scenario – this is a space of tremendous eventuality and legal energy that yet remains to be unfolded and would offer brand icons the rigidity and newness of creating the differences that they may so desire in one of the most dynamic and promising marketable arenas across the transnational geography.
