Written By: Sarthak Sharma
Introduction
Non-Traditional marks are those which do not fall under the ambit of conventional marks which include- letters, numbers, logos, pictorial description, symbols, or a combination of such elements. Take the silky purple of Cadbury, or the aroma of Starbucks. Such elements, despite not being conventional in nature, they can be easily recognised by the buyers. Therefore Non-Traditional marks can be said to be inclusive under the Act if they satisfy the criteria of both being distinctive and able to be graphically represented. The same as traditional marks, Non-Traditional marks too must have the ability to differentiate the goods and services of a person from another.
INDIA
As mentioned earlier, a Non-Traditional mark is required to be able to be represented graphically, by being put on register in a physical form and being able to be published in the journal as well. For the trademark application, The Trademarks Rules, requires the trademark to be represented in a ‘paper form’.
In India, there is a certain degree of absorption of the concept of Non-Traditional marks. The same can be seen reflected under the Trade Marks Rules, 2017.
According to Rule 26(5), Sound trademarks, by submitting a sound clip along with the musical notations, can be registered as long as the length of the sound clip is not more than 30 seconds. Rule 26(2) of the Rules, states a combination of colours can be submitted for a colour trademarks by submitting a reproduction of the same.
Three dimensional trademarks find a way to be registered, under Rule 26(3), by reproducing a two dimensional graphic or photographic reproduction. Rule 26(4) states that the shape of the goods, and/or its packaging, can be registered as well with at least five different views of the trademark and a description. There is no provision till date for smell trademark registration.
The following types of Non-Traditional Trademarks exist-
Colour
A distinctive colour is likely to stay on the mind of the consumers. India does not provide for the registration of a single color, but it doesn’t disallow it either. A single color trademark registration, requires evidence of acquired distinctiveness in India. A combination of colors, which the aforementioned Rule talks about, stands a better chance of registration, following the same suit of being capable of distinguishing the goods.
The onus will be on the Applicant to show continuous bonafide usage as well. Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd.[1], elaborates on the matter of using a combination of colour to to attribute the brand of a company.
In Deere and Co v S Harcharan Singh[2], the Delhi High Court declared the word mark JOHN DEERE, the leaping deer logo and the company’s green-and-yellow colour mark to be well-known trademarks.
The concern for such a trademark lies with the limited number of colors. So granting exclusivity will sooner or later deplete the available stock. Further there could be heated debates over different shades of color, which would hinder the trademark registration process.
Trade Dress
Trade dress refers to the overall look or appearance of a particular product or packaging and how impactful and visually appealing it is to the consumers. Take the Coca Cola bottle and its shape, the red label and the red cap which provide the overall look and feel of the product. Trade dress goes much beyond the product itself.The Delhi High Court, in Colgate v. Anchor[3], acknowledged the colour combination of one third red and two third white on the container as a trade dress.
Sound
Sounds can play a big impact on a consumer’s perception of a brand. They help identify a product/service and add value to the brand. A sound mark essentially is a sound being used to uniquely identify the commercial origin of the product/service.
The key is that only musical notes, being capable of being represented as musical notations are acceptable whereas noises like a dog barking will not.
India granted sound mark registration to the ICICI Bank jingle, by using the musical notes,and became the first Indian entity to obtain a sound mark registration. The Yahoo! Yodel was the first sound mark to be granted registration to by the Trademark Registry. Subsequently, Allianz and Intel’s application for registration of sound marks has also been accepted.
Internationally, some famous sound marks registered are the Tarzan yell, the lion roar of MGM, the intro music of Twentieth Century Fox Films, the sound of the crowd and the bell of New York Stock Exchange and McDonald’s “I’m lovin’ it” jingle.
Smell
A smell mark is used when the source identifier of goods is a smell. In India, no smell mark has been registered till date before the registry. Globally speaking there have been very few smell mark registrations. This is because of the inability of graphical representation” of scents. A verbal description of smell can be subjective and inaccurate. The European Court of Justice has ruled out describing the smell as a chemical formula as well. A sample of the scent provided as evidence may degenerate over a period of time. Description of the scent can be detrimental for Perfume companies as that would include describing the product including the ingredients.
3D Holograms
When light scattered from an object is recorded and then presented in a manner that appears three-dimensional, the photographic technique is called Holography. In USA, American Express owns a trademark registration for a hologram on their credit cards. Due to being a nascent technology, very few cases of 3D marks have been seen.
India hasn’t received any hologram mark registration application yet.
Motion Mark
A motion mark is a moving animated object or logo. Microsoft windows logo, which can be seen once we open the windows PC or laptop, is a well-known example of a registered motion mark. The opening and closing of Lamborghini doors have been protected under motion marks by USA as well.
Texture Mark
Those marks which give the feel of the product through just touch are known as Texture marks. They prove very difficult to be registered as there can be no representation of the feel of the texture and are therefore the least common Non-Traditional Marks. Texture marks further cannot be attributed to the functional purpose of the product, because the texture of a toothbrush’s hair cannot be trademarked as that would be anti-competitive. In US, leather texture wrapping around the middle surface of a bottle of wine is registered as a texture mark.
No texture marks have come for registration before the Indian registry.
Taste mark
Taste marks can be represented graphically by a written description of the taste which can indicate the taste of the goods. The functionality doctrine however, once again proves to be a barrier.A trademark for the taste of pizza or pasta cannot be granted as it inherently performs the function of making the same- i.e. adding flavour to the dishes. Till date, no registration has been granted for taste marks in the world.
[1] 2005(31) PTC 583 DEL
[2] 2015(63)PTC433(Del)
[3] 2009 (40) PTC 653 (Mad.)
