BEYOND LOGOS: THE RISE OF UNCONVENTIONAL TRADEMARKS IN INDIA

Abstract

Trademarks have traditionally been classified based on words, names, labels, and graphic signs. The rise of competition, in addition to technological advancements, has led to the expansion of modern-day branding to include sound, color, the configuration of a product, movements, patterns, positioning and even the scent of the product. Such unconventional or non-traditional signs present challenges to the established notions of trademark registration with respect to distinctiveness and representation in a graphical form.

The Trade Marks Act, 1999 made a significant departure from the Trade and Merchandise Marks Act, 1958, as it defined a "mark" to include the shape of goods, packaging, and combinations of colors. Sound marks and three-dimensional marks were explicitly recognized through the rules under the Trade Marks Rules, 2017. Unconventional marks such as product shapes, color combination, stitching patterns, and trade dress have been protected by way of trademark infringement or passing off suits in Indian courts. Nevertheless, unconventional trademarks continue to be subjected to increased judicial scrutiny owing to consumer perception and lack of graphical representation of the mark.

This paper studies the treatment accorded to sound, shape, color, positioning, patterns, smell, taste, etc. in India. This paper discusses the principles of acquired distinctiveness, functionality, graphical representation, and competitive necessity in the context of the Indian jurisprudence and comparative jurisprudence. This research aims at identifying the balance between the traditional method of registering trademarks and the ever-expanding range of unconventional trademarks.