To know about non-traditional trademarks, it is first important to be familiar with what exactly is a trademark.
Basically, a trademark is an intellectual property that is utilized for recognizing an item or a service. In India, Section 2(1)(zb) of the Indian Trademarks Act determines that any imprint which is distinctive. The trademark secures and protects words and designs that recognize the owner, or the creator of that product. Generally, a trademark consists of a unique name, logo, symbol, designs, colour, or a combination of these characteristics. These are referred to as traditional trademarks.
The Non-Traditional trademarks are those imprints that don’t fall under the classification of traditional marks, for example, marks including letters, numbers, logos, pictorial depiction, images, or those components which comprise of the blends of such components. The meaning of a Non-Traditional trademark is illustrative and states that it incorporates the ‘shape of products’, ‘packaging’, and ‘mix of colours inside its ambit. They are fundamentally those marks that depend on appearance, shape, sound, smell, taste, textures, and so on. Such marks are supposed to be past the domain of conventional trademarks.
The normal component of the non-traditional trademarks is that they are not outwardly discernible however yet they have been trademarked due to certain degree of recognizable proof required from the consumer perspective since showcase insightful organizations need to plan and promote their items in such a way, that it claims to the customer’s aesthetic sense.
Types of Non-Traditional Trademarks
- Color Marks
Single colour and mix of colours are the two types of Color trademarks. A blend of colours can be remembered for a few national enactments. But, the problem originates when a single colour is used as a sign of a trademark. This matter was considered in the case of Libertel Groep BV v. Benelux Trademark Office. The issue contended that whether a solitary colour mark comprising of orange colour can be enlisted as a trademark. The court, however, rejected the single colour mark but said that in certain situations, it can be accepted on the basis of verbal description.
The Indian Registry and Courts follow the colour exhaustion hypothesis, which depends on two contentions. First, there is a worry that with the set number of colours, to allow restrictive rights to colours would at some point or another drain the accessible stock and, subsequently, be anticompetitive. Second, if a colour alone was protectable, trademark encroachment suits would prompt long cases over ‘shades’ of colour which would hinder the trademark enrollment process.
- Smell Marks
In the case of Ralf Seickman v. German Patent Office, it was laid down that the remarkable thing about olfactory or smell marks is that however they cannot be seen outwardly yet they are considered as a substantial trademark. The court held that the visual observation is not essential to the extent the imprint can be graphically represented. A trademark is registrable if the graphical portrayal of the mark is self-contained, strong, objective, comprehensible and accessible. The prerequisite of a mark being seen unambiguously by one and all consequently turns into an obligatory necessity for enrollment, nonappearance of which may prompt infringement.
- Sound Mark
The function of a sound trademark is to interestingly recognize the commercial cause of items/services by methods of an audio clip. When all is said in done, applications as melodic documentations portraying the sound meet these prerequisites, though onomatopoeic depictions don’t. This implies musical notes that can be spoken to as melodic documentations are worthy though commotions like a dog barking which cannot be spoken to by a musical documentation however must be portrayed onomatopoeically or through a sonogram can’t be qualified for a trademark. This was held in the case of Shield Mark.
- Taste Marks
Taste Marks are dealt with like the smell marks. Be that as it may, authorization of taste marks is usefulness since they should be accessible to all contenders. Models would incorporate mint toothpaste for grown-ups and bubble gum toothpaste for kids. Flavors may likewise be seen as conventional on the grounds that they are utilized as often as possible by various makers. Just a strange flavor like melon or caramel or peanut butter added to a toothbrush or dental floss would be bound to be secured than the equivalent for cookies or bread.
Position of India on Non-Traditional Trademark
In India, not very many non-traditional trademarks have been enrolled. India has imported the Shield Mark Doctrine concerning graphical portrayal of sound marks.
Section 2(1) (m) of the Trademarks Act characterizes mark to be a comprehensive definition comprising of shapes and bundling of products or a mix of colours. As per Rule 25(12) (b) of the Trademark Rules, 2002, the application for enrollment of a trademark for products and services must be with the objective that it tends to be portrayed graphically.
In the light of these provisions, it very well may be expressed that the idea of the non-traditional trademarks can be incorporated with the main special case of graphical portrayal as a basic.
Conclusion Accordingly, it very well may be inferred that apart from the need of graphical portrayal, this zone has been basically left unexplored. It is essential to investigate increasingly about this as the innovation is continually changing and the law ought to be refreshed to keep in pace with these changes.
This blog is written by Rashi Srivastava, Amity University.
Some of her blogs-
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