ABSTRACT
Trademarks, a cornerstone of intellectual property, are a well-developed concept in our Indian legislation. A trademark includes recognizable signs, designs, expressions, words, logos, and letters used to identify a product or service. This paper focuses on the emerging realm of unconventional trademarks, such as sound, smell, color, taste, and position marks, that remain in a state of uncertainty about whether to be included as a type of trademark. These kinds of trademarks are growing frontiers in Intellectual Property Law, yet they are not completely embraced by our Indian legal system due to certain drawbacks. However, in some specific instances, they are recognized where there is an essential need to uphold and protect trademarks. This paper will be primarily focused on the acceptance and non-acceptance of unconventional trademarks within the Indian legal framework, offering solutions to the issues that can be rectified so it serves justice for those seeking protection of a trademark. While protecting these marks poses few challenges, this research paper also highlights the importance of unconventional trademarks and their legal intricacies involved in securing their protection, emphasizing the need for a more flexible and adaptive approach in the evolving field of intellectual property law.
KEYWORDS: Intellectual Property Law, Unconventional Trademarks, Legislation, Trademark, Protection.
INTRODUCTION
An Unconventional Trademark refers to trademark which includes non-traditional characteristics such as sound, smell, taste, color which goes beyond the usual words or logos. The definition of trademark under section 2(zb) of the Trademarks Act, 1999[1] is inclusive and open ended. It can cover even more than what is listed. This openness along with new technology has introduced new types of Trademarks known as Unconventional Trademarks.
By appealing to senses other than sight, such as hearing (via sound marks like jingles) or smell (through fragrance marks for perfumes or specialized product packaging), unconventional trademarks help businesses create a lasting impression. This is why they are crucial to modern branding. Customers can identify trademarks like the distinctive roar of the MGM lion or the smell of Play-Doh, for instance, which strengthens the brand experience by fostering an emotional and sensory bond.
Unconventional trademarks provide businesses new methods to stand out when marketplaces get increasingly saturated and standard trademarks become less distinctive. However, these kinds of markings sometimes encounter further difficulties in obtaining legal protection and registration since they might not be readily portrayed physically[2].
In India, the idea of Unconventional trademarks is still in the early stages of development, and there is continuous discussion over whether or not these marks can be recognized without a graphical representation. This article highlights the changing worldwide approach to trademark law by examining the intricacies and technical obstacles related to Unconventional trademarks, especially in India, and comparing how they are treated in the EU.
[1] Section 2(zb) of the Trademarks Act, 1999.
[2]Khurana, T. and Khurana, T. (2021) Non-Conventional Trademarks: A Legal analysis. https://www.khuranaandkhurana.com/2019/04/15/non-conventional-trademarks-a-legal-analysis/.