With our knowledge solely being restricted to conventional or traditional trademark and the definition attached with the same, the growth, scope, and meaning of non-traditional trademark alongside technological changes in this world have been left completely ignored. Although non-traditional trademark is a grey area in the domain of trademark, instances surrounding the registration of these marks, reaching courts across the world have grabbed the attention of many.
The definition of trademark provided under the Indian Trademarks Act, 1999 reads as "a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colors." Though the mention of the non-traditional trademark is expressly absent from this definition, the definition is inclusive of the same, which has time and again become a ground as to why non-traditional trademark fails to get recognized as much as traditional trademarks. Thus, marks that exist beyond the ambit of traditional trademark and include smell, color, shape, sound, taste, hologram, texture, and many others can be called non-traditional trademarks.
Non-conventional trademarks include both visible and invisble mark and therefore, identification of the latter marks becomes a difficulty for the consumers due to difference in pereception. Powered by this, registration of any trademark takes place on two grounds, irrespective of any legislation, they are distinctiveness and graphical representation. While visible marks like colours and shapes can be graphically represented as well as acquire distinctiveness, marks such as odour, touch, both these two tests for registering a trademark seems to fall apart. With reality grounds behaving as check and balace for non-traditional trademark to gain significance, it is necessary to look into some of these marks that have been in discussion over the years;
Sound mark: The European Court of Justice (ECJ) in the case of Shielf Mark BV v. Joost kist h.o.d.n Memex, observed that sound represented graphically by using written language as a description, will not be enough to gaphically represent a sound mark. Rather, musical notation or a clef can be used to graphically represent a sound mark and register the same as a trademark. With this observation, the court rejected the plea for registering the sound mark. In India, Yahoo!’s yodel, represented through musical notes, followed by the sound mark by Allianz Aktiengesellschaft, and sound mark of ICICI Bank in the notes which forms the jingle are some of the non-conventional trademark that got registered.
Colour mark: When it comes to colour marks, both single colour and combination of colour takes up the dias for a talk. While combination of colour does have a easy path towards registration, single colour faces hurdles of being specific, self containes, and precise. The issue of registering a single colour was noticed in the case of Libertel Groep BV v. Benelux Trademark Office. Once again the ECJ stated that in order to register a single colour, easy accessibility, objectivity, and durability along with being clear and precise, should be some traits for the colour to comply with.
Smell mark: In the case of Ralf Seickman v. German Patent Office, the not-so-common trademark, odour mark gained importance when the registration of the mark was was rejected on the ground that criterias for graphical representation of the same were not met with. The major issue pointed out that whether an olfactory mark, described as balsamically fruity scent with hint provided of cinnamon could be registered as a trademark in respect to certain services. The ECJ was of the opinion that graphical representation is not sufficient for the odour mark and it needs to be clear and precise, in order to clear the right of exclusivity. Alongside this, it must be considered intelligible persons having interest in inspecting registers.
We get to see a brief discussion above as the ambit of non-traditional trademark is as wide as the traditional one. With it slowing seeing the light of the day, the scenerio in India with respect to non-conventional trademark still awaits to be explored like many other countries across the world. The failure of the mark in being graphically represented and acquiring distinctiveness restricts it to run the same race as the traditional and familiar marks. The need for uniformity across the world to address the changing patterns of traditional trademark to that of non-traditional ones is indispensuble at present. With this, there arises a calling for change in the trademark legislations worldwide to address the issues concerning non-conventional trademark in a better and experinced way.
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