Everybody who is even a bit aware of the concept of trademark registration in India knows that unique name, symbol, design, logo, emblem, signature, device, mark figure etc can be protected with trademark registration. The main motive of trademark registration in India as well as other parts of the world is to uniquely identify the products and distinguish it from the others in the market.
Can only the brand name associated with the product makes it unique? Can’t we distinguish a product by its smell, color, sound, or shape? Think about it.
With, the continuous improvement in the technology and competition every second something new is created and every valuable creation deserves recognition. Prior, to the year 2017 in India the recognition under the Trademark Act 1999 could only be obtained for the traditional or conventional trademarks. Thus, the unique sound, smell or shape assigned by you to your product or services could not be protected. However, the concept of unconventional trademark registration was very popular in other parts of the world except India. Finally, the new trademark rules came into existence on 6th March 2017 ushered a new era for trademark registration in India by introducing unconventional marks in it.
To simply state it, we can say that Non- conventional trademark is a distinct type of trademark that does not belong to the conventional class of trademarks. However, just as conventional trademarks these trademarks also uniquely identify the commercial origin of products or services. Due to their characteristics, the registration of the unconventional trademark in India is often more difficult as compared to traditional marks. With this article, we will take a glance at the various types of unconventional marks.
The various types of unconventional trademark include-
Just like the traditional trademarks any sound that is capable of uniquely identify the commercial origin of products/ services is eligible to be protected. However, it should be noted that the musical notes that can be represented in the form of musical notations are acceptable as trademarks. Whereas the sounds which require onomatopoeic or sonogram representation are not eligible for trademark registration. There are multiple examples of sound registration including the four-note bell sound of Britannia Industries, default ring-tone of a Nokia mobile phone, the yodel of yahoo, thunderous sound of Harley-Davidson etc. Sound marks can be registered by submitting a sound clip along with the musical notations. Further, in order to obtain a sound registration sound clip along with the musical notations shall be submitted.
In India, the first sound registration was granted by the trademark registry to the Yahoo! Yodle. Also, the ICICI holds the registration for the musical notes that form its jingle. Thus, now you can associate a sound with your brand and protect it.
According to the recent trends in India, the concept of smell registration is not a very popular here. This is because the smell cannot be represented graphically and is defined subjectively. Generally, the representation of the smell is verbal and the verbal representation of the smell is not sufficient to distinguish one smell from the other. This makes it very hard to get smell registration for any business.
Trademark registration of color has always been a topic of dispute. If you go by the trademark rules you will find that they do not provide for the registration for single color however it does not expressly exclude the notion. In reality, any person cannot use the seven basic colors for registration but any shade thereof can be protected. While single color registration is difficult the combination of colors can be protected more easily.
In order to obtain the registration for the color, it should be proved by the applicant that the color used by them are unique and are capable of distinguishing goods and services from similar goods and services. Also, the registration can be obtained if a color combination used is not inherently distinctive, but it has acquired distinctiveness due to the bona fide use over a long period of time. The burden of proof is on the applicant to show that the color has acquired distinctiveness or secondary meaning.
Just like in India the protection is granted to the red and white combination which is a unique feature of Colgate. However, the application of Cadbury for registering its purple color was declined in India as only a single color was used in this case.
To conclude we can just say that the concept of an unconventional trademark is equally important as tradition marks and can definitely benefit your business. Thus, go ahead do something unique by getting the smell, sound or color registered for your products and services.