Startup
Start Your Business
Private Limited Registration
Public Company Registration
OPC Pvt Ltd Registration
LLP Firm Registration
Section 8 Company Registration
Nidhi Company Registration
Insurance Company Registration
NBFC Company Registration
Producer Company Registration
Foreign Subsidiary Registration
Foreign Branch Office
Foreign Liaison Office
Foreign Project Office
Overseas Company Registration
Proprietorship Firm Registration
Partnership Firm Registration
Grow Your Business
GST Registration
MSME Registration(UDYAM)
Shop & Establishment Registration
Startup India Registration
ESI/PF Registration
IEC Code (Import Export)
Startup Consultation
Appoint Virtual CFO
Angel Funding/ VCs
Virtual Office Service
Due Diligence of Company
Business Development
Protect Your Business
Trademark Registration
Trademark Objection
Trademark Hearing
Trademark Opposition
Trademark Infringement
Trademark Renewal
Trademark Assignment
Trademark Withdrawal
Trademark Monitoring
Logo Design Service
Copyright Registration
Patent Registration
Exit Your Business
Close Company
Fast Track
Close LLP
Close Firm
GST Cancellation
Compliances
Change Services
Change Company Name
Change LLP Name
Change Company Object
Change LLP Object
Increase Authorised Capital
Increase Paid-up Capital
Increase LLP Capital
Transfer of Shares
Alteration in MoA & AoA
Resignation of Auditor
Appointment of Director
Resignation of Director
Change in Designation of Director
Shifting Registered Office of Company
Shifting Registered Office of LLP
Dormant Status of Company
Mandatory Compliances
Appoinment of Auditor
Annual Filings of Company
Annual Filings of LLP
Annual DIN/DPIN KYC
Annual Return of Deposits
Half Yearly MSME Return
Statutory Registers & Minutes
XBRL Filing of Companies
eStamping of Share Certificates
Dematerialisation of Shares
RBI FEMA Compliance
GST Returns Filing
ESI-EPF Returns Filing
TDS Returns Filing
Change in Structure
Proprietorship to OPC
OPC to Private Limited
Private Limited to OPC
LLP to Private Limited
Private Limited to LLP
Partnership Firm to LLP
Private Limited to Public Company
Public Company to Private Limited
Trust/Society to Section 8 Company
Existing Company to Section 8
Existing Section 8 to Company
Services
Accounting & Book Keeping
GST Compliance
Valuation Services
Corporate Litigation
Company Law Advisory
Services For Banks
Drafting & Vetting Services
Business Setup Advisory
Startups Funding
Business Loans
Get in Touch
Govt Liaisoning
Retainership Services
NBFC
NBFC Company Registration
NBFC Micro-Finance Registration
NBFC P2P Lending Registration
NBFC Core Investment Company
NBFC ROC Compliance
NBFC RBI Compliance
NBFC License Restoration
NBFC Business Plan
NBFC Acquisition
NBFC Consultancy
NBFC Compliance Calendar
NBFC Independent Director
ISO
ISO 9001:2015
Most Demanded
ISO 14001:2015
ISO 13485:2016
OHSAS 18001:2007
HACCP Certification
CE Marking
GMP Certification
CMMI Level 3 Certification
ISO 22000:2005
ISO 27001:2013
FSSAI
FSSAI Registration
FSSAI State License
FSSAI Central License
FSSAI Registration Renewal
FSSAI License Renewal
FSSAI Returns Filing
FSSAI Compliances
FSSAI Consultancy
ITR
Salaried Person
TDS Refund
Firms/LLPs
Companies
NGOs
Income Tax Notice
Income Tax Planning
Income Tax Litigation
Income Tax Computation
Charity
Section 8 Company
Recommended
Trust Registration
Society Registration
80G & 12A Registration
FCRA Registration
NITI Ayog Registration
CSR-1 Registration
CSR 2 Report
CSR Services
NGO Consultancy
NGO Handholding
Govt Grants Support
Partnership
Angel Investors
Venture Capitalists
Co-Working Spaces
Banks and NBFCs
Incubation Centres
Government Wings
Institutional Bodies
Software Companies
CA/CS/CMA/Lawyers
Press & Media Houses
Overseas Ventures
Other Startup Enablers
Contact Us
Home
Trademarks
Exploring Non-Conventional Trademarks Under the Trade Marks Act, 1999
Exploring Non-Conventional Trademarks Under the Trade Marks Act, 1999
Volume
1
Rate
1
Pitch
1
Exploring Non-Conventional Trademarks Under the Trade Marks Act, 1999. A trademark is a unique word, logo, symbol assigned to products or services of a business, company to provide it an identity to be distinguished from its competitors. By registering a trademark, the owner has various rights for the protection of its trademark. Section 28 of the Trade Marks ACT, 1999 provides exclusive rights to the owner of the trademark. So, it is always advised to seek help of a trademark attorney during the process of registration of trademark for an easy and convenient work. Section 2(zb) of the Trade Marks Act, 1999 provides trade mark means 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 shape of goods, their packaging and combination of colors, further provided in (i) and (ii) Trademarks mostly include symbols logos, words, pictures, letters and numerals. These are the traditional marks, which have been trademarked since a long time. However, with the change in dynamics of Intellectual Property Law, the trademarks now are just not limited to these traditional marks. The concept of Non- Conventional trademark even after many years is still new to the trademark law. WHAT ARE NON-CONVENTIONAL TRADEMARKS? Non- Conventional, Unconventional trademarks are the marks originating from shapes, sounds, smells, tastes, and textures. As per Trade Marks Act, 1999 only the marks which can be graphically represented and pass the examination process are considered to be registered, so if any non-conventional mark is graphically registered, it can also be a trademark. TYPES OF NON- CONVENTIONAL TRADEMARK SMELL TRADEMARK Smell is one of our five senses, and the smell of a product can have a long-lasting impact on people. Hence, many companies register the smell of their products to establish the right on that smell. Even though many counties in the world have TM Accepted and registered smell trademark, in India there has still been no registration of smell trademark. You can also register your smell trademark with the help of trademark attorneys. SOUND TRADEMARK In this trademark, the trademark is in the form of sound or music. e.g.: Yahoo Inc.’s three-note yodel & ICICI Bank’s corporate jingle. For a sound to be registered as a trademark in India; an MP3 recording of the said jingle, chime or musical composition, which is not more than 30 seconds in length, has to be submitted to the Office of Registrar of Trade Marks as per Section 26(5) 3 of the Trade Marks Rules, 2017. There is an additional requirement of submitting a graphical notation also has to be submitted. Furthermore, according to the Draft Manual of Trade Marks Practice and Procedure, the application submitted should clearly indicate that the trademark is being sought for a sound. COLOUR TRADEMARK In this trademark, colour is used as trademark. It may be a specific colour or varied combinations of colours. e.g. Blue of Tiffany. A combination of colours find mention in s. 2(1)(m) , 2(1)(zb) and 10(1)of the Trade Marks Act, 1999. However, there is nothing mentioned about the single colour trademarks anywhere in the Act. Additionally, Section 9(1)(a) of the Act states that non distinctive trademarks should not be registered. SHAPE TRADEMARK Similar to the colour trademark, shape trademark is also find mention under the same sections of Trade Marks Act, 1999. Just like the condition of combination of colours for colour trademarks, the shape should be distinctive in nature for shape trademarks. As per s. 9(3) of the Act the shape to be eligible for a trademark should be distinctive from the good or service i.e. should not be due to the nature of the product. Furthermore, the shape must not have functional considerations or to obtain a technical result. The Draft Manual of Trade Marks Practice and Procedure further clarifies shape marks and their registration in India. TASTE TRADEMARK In this trademark, the flavor of the product is the trademark. However, to qualify as a trademark the consumers should be able to associate with the flavor of a particular product. Taste as trademark has gained recognition in European Union, USA, Britain and Canada . However, it is yet to be recognized in India. Moreover, it is important to note that any trademark which is objected on relative grounds as per Section 11(1) of the Trademarks will not be registered. TACTILE TRADEMARK Trademarks related to the sense of touch are tactile trademarks. One of the most prominent human senses is touch. Such trademarks were first recognized by the International Trademark Association in 2006 by adoption of Resolution supporting the recognition and registration of touch marks. Similar to all other marks, a tactile mark cannot be functional in nature. However, the tactile marks are not easy to present graphically hence, there are very few tactile marks. Generally, such marks only get registered after acquiring distinctiveness by being in use for a substantial amount of time. e.g.: Federal trademark registration of a touch mark comprising “ a velvet textured covering on the surface of a bottle of wine. ” by American Wholesale Wine & Spirits, Inc. and “ cotton-textured paper, which is wrapped around an oval-shaped soap tied with a silver-colored wire ” by Fresh Inc. Challenges To Non-Conventional Trademarks: For unconventional trademark to get registered, it needs to comply with statutory provisions which are different across different countries. In Seickmann v. Deutsches Patent-und Markenamt , the European Court of Justice (ECJ) held that the graphical representation of the non-conventional trademarks must be “clear, precise, self-contained, easily accessible, intelligible, durable and objective”. This approach is now widely accepted and popularly known as the Sieckmann test. It was applied in several other cases later on including the case of Apple Inc v. Deutsches Patent und Markenamt . The Trade Mark Act of 1999 provides for registration of trademarks. However, the law deals primarily with conventional forms of trademarks. India has a complex process for registering non-conventional trademarks. Sound trademarks are registered by providing clips of sound along with notes of music. Rule 26 (2) of Trade Mark Rules provides that colour trademarks are to be registered by furnishing reproduction of the colour combination . Applicant has to demonstrate the uniqueness acquired on the basis of regular usage in good faith. In Colgate Palmolive Company v Anchor Health & Beauty Care Pvt Limited, the court held that trade dress and general appearance on the basis of colour combination is the basis for identification of goods and services. Rule 26 (3) of Trade Mark Rules provide that 3D trademarks can be registered by reproducing the trademark, that shall consist of two dimensional or photographic reproduction. Rule 26 (4) of Trade Mark Rules provides that shape trademarks can be done on the basis of shape of goods or mode of packing. Conclusion Technology has become an indispensable part of our lives . From our bathroom equipment to our cars everything is dependent on technology. The need for trademarks has accordingly gained more significance than ever before. Businesses devote a lot of time, energy, and capital to making quality goods and services that set them apart from their competitors. The non-conventional trademarks have also attained great prominence to distinguish the products. However, the jurisprudence relating to non-conventional trademarks is not explored in India yet. Not all non-conventional trademarks have been recognized legally. The need of the hour is to take inspiration from developed countries and create a legal mechanism pertaining to non-conventional trademarks. Do you want to register your trademark or unconventional trademark and stuck in the process? Don’t worry, you can contact Compliance Calendar today and we will be glad to help you!
Share this article:
Search more articles:
You may also like
The Ultimate Guide: How to Register Your Brand Name in India
How to Reply Trademark Objection in Examination Report under Section 9 and 11
Trademark Opposition Process in India
Trademark Infringement: Meaning, Types, Examples and How to Avoid TM Infringement
Trademark Renewal Process in India
Trademark Assignment Process: Learn How to Transfer Trademark Ownership
Stages of Trademark Registration Status - The Complete Manual
Trademark Status- Send to Vienna Codification
Trademark Status- Formalities Chk Pass
Trademark Status- Formalities Chk Failed
Trademark Application Status- Marked For Exam
Trademark Status- Examination Report Issued
Trademark Status- Objected
Trademark Status- Ready for Show Cause Hearing
Trademark Status- Advertised Before Accepted
Trademark Status- Accepted
Trademark Status- Accepted and Advertised
Trademark Status- Refused
Trademark Status- Abandoned
Trademark Status- Withdrawn
Trademark Status- Opposed
Trademark Status- Registered
Trademark Status- Removed
Absolute Grounds of 'Distinctive' and 'Distinguish' Character under Section 9(1) (a) of the Trademarks Act, 1999
Analysis of Trademark Genericide: Meaning, Effects and ways to Protect
An analysis on the proviso of Section 9 (1) (b) of the Trademark Act, 1999
What is Assignment and Transmission in Trademark?
How to protect your brand name by filing a Trademark Application
How Startups can protect their brand / Logo in India and Government supports
List of New Trademark Forms in India as per the Trademark Rules, 2017
What is Class 99 of Trademark Application- Is it a good or bad decision?
How to file Counter Statement for Trademark Opposition?
What are well known Trademarks and How to obtain it?
What is the difference between TM and ®
Protecting Your Brand: A Step-by-Step Guide to Trademark Registration
Trademark Law: Protecting your brand identity
Trademark Registration Online: Protect your Business IP
Reply to Trademark Objection on Relative Grounds of Refusal: Section 11 of Trademarks Act, 1999
YAHOO INC VS. AKASH ARORA AND ANR - Does Domain Name Constitute Trademark Infringement?
Concept and Protection of Trade Dress in Trade Mark
IPR for Social Media Influencers- Here's all you need to know
Damages for Trademark Violation - Puma Se vs. Ashok Kumar | Delhi HC
Delhi High Court on (Non) Functioning of the Trademark Registry Website/Portal
Safeguarding Food Trademarks: Domino’s vs. Dominick Pizza ruling on Deceptive Similarity
Have you claimed Depreciation on your Brand Name? Here’s a Landmark Ruling to watch out
The Case Against Meesho: Why E-Commerce Portals Must Ensure Complete Disclosure of Sellers Details
Special Drive Initiative to Expedite Pending Trademark Applications
Difference Between Trademark and Service Mark
Importance of Using Trademarks to Maintain Applicability in Indian Law
International Non-Proprietary Names (INN) and Trademark Laws in India
Process of Rectification of Trademark in India
Role of Trademark Attorneys in Trademark Registration
Why is Trademark Registration for Startups and Small Businesses Necessary?
A Battle Between the Coca-Cola Company v. Bisleri International Pvt. Ltd. For Trademark Infringement
Delhi High Court Rules in Favor of Google in Trademark Infringement Case
No Monopoly Can Be Claimed for Words of Common English Usage
Common Mistakes to Avoid When Choosing a Trademark for Your Brand
Brewed Trademark Infringement Case of Starbucks Vs Sardarbuksh
Exploring the Concept of 'Deceptive Similarity' in Trademarks Law
Why Filing of Evidence Before the Registrar of Trademarks is Crucial?
Rise of Domain Names as Trademarks in the Digital World
Concept of Passing Off in Indian Trade Mark Law
Evolution of Trademark Laws in India
Important of Power of Attorney (POA) in Trademark Filing
Trademark Issues in Co-branding and Collaborations
Trademark Enforcement Strategies for Online Marketplaces and Platforms
Trademarking Financial Services in the Fintech Industry
Interplay of Trademarks and Artificial Intelligence in the Modern Digitalized Era
Who can register a trademark in India?
Trademark Status- Protection Granted
Trademark Case Law: Sterling Agro Industries Limited v. ASR Trading Company
Registration of Color Trademark in India Under Trademarks Act, 1999
Trademarking Sustainable Tourism
Trademark Protection for NGOs / Non-Profit Organizations in India
Role of the USPTO in Trademark Registration
How to know the Trademark Status for Trademark Registration in India
Can a person trademark their own name in India?
Trademark Strategies for Startups - A Complete Guide
Supporting Documents Required for Attending Trademark Hearing in India
How to fight Trademark Infringement bonafide if your mark is different?
When to file for Trademark Abandoned Status as an Applicant?
Trademark Registration Online: The Complete Process and Cost
Extent of exclusivity granted over the shape of a product by trademark registration in India
Process of Trademark Withdrawal in India
Should Trademark Logo (Device) be filed in colour or black and white (grey)?
Bearing the Burden of Common Use in Trademark Ownership
Start Your Business
Private Limited Registration
Public Company Registration
OPC Pvt Ltd Registration
LLP Firm Registration
Section 8 Company Registration
Nidhi Company Registration
Insurance Company Registration
NBFC Company Registration
Producer Company Registration
Foreign Subsidiary Registration
Foreign Branch Office
Foreign Liaison Office
Foreign Project Office
Overseas Company Registration
Proprietorship Firm Registration
Partnership Firm Registration
Grow Your Business
GST Registration
MSME Registration(UDYAM)
Shop & Establishment Registration
Startup India Registration
ESI/PF Registration
IEC Code (Import Export)
Startup Consultation
Appoint Virtual CFO
Angel Funding/ VCs
Virtual Office Service
Due Diligence of Company
Business Development
Protect Your Business
Trademark Registration
Trademark Objection
Trademark Hearing
Trademark Opposition
Trademark Infringement
Trademark Renewal
Trademark Assignment
Trademark Withdrawal
Trademark Monitoring
Logo Design Service
Copyright Registration
Patent Registration
Exit Your Business
Close Company
Fast Track
Close LLP
Close Firm
GST Cancellation
Change Services
Change Company Name
Change LLP Name
Change Company Object
Change LLP Object
Increase Authorised Capital
Increase Paid-up Capital
Increase LLP Capital
Transfer of Shares
Alteration in MoA & AoA
Resignation of Auditor
Appointment of Director
Resignation of Director
Change in Designation of Director
Shifting Registered Office of Company
Shifting Registered Office of LLP
Dormant Status of Company
Mandatory Compliances
Appoinment of Auditor
Annual Filings of Company
Annual Filings of LLP
Annual DIN/DPIN KYC
Annual Return of Deposits
Half Yearly MSME Return
Statutory Registers & Minutes
XBRL Filing of Companies
eStamping of Share Certificates
Dematerialisation of Shares
RBI FEMA Compliance
GST Returns Filing
ESI-EPF Returns Filing
TDS Returns Filing
Change in Structure
Proprietorship to OPC
OPC to Private Limited
Private Limited to OPC
LLP to Private Limited
Private Limited to LLP
Partnership Firm to LLP
Private Limited to Public Company
Public Company to Private Limited
Trust/Society to Section 8 Company
Existing Company to Section 8
Existing Section 8 to Company
Services
Accounting & Book Keeping
GST Compliance
Valuation Services
Corporate Litigation
Company Law Advisory
Services For Banks
Drafting & Vetting Services
Startups Funding
Business Loans
Get in Touch
NBFC
NBFC Company Registration
NBFC Micro-Finance Registration
NBFC P2P Lending Registration
NBFC Core Investment Company
NBFC ROC Compliance
NBFC RBI Compliance
NBFC License Restoration
NBFC Business Plan
NBFC Acquisition
NBFC Consultancy
NBFC Compliance Calendar
NBFC Independent Director
ISO
ISO 9001:2015
ISO 14001:2015
ISO 13485:2016
OHSAS 18001:2007
HACCP Certification
CE Marking
GMP Certification
CMMI Level 3 Certification
ISO 22000:2005
ISO 27001:2013
FSSAI
FSSAI Registration
FSSAI State License
FSSAI Central License
FSSAI Registration Renewal
FSSAI License Renewal
FSSAI Returns Filing
FSSAI Compliances
FSSAI Consultancy
ITR
Salaried Person
Firms/LLPs
Companies
NGOs
Income Tax Notice
Income Tax Planning
Income Tax Litigation
Charity
Section 8 Company
Trust Registration
Society Registration
80G & 12A Registration
FCRA Registration
NITI Ayog Registration
CSR-1 Registration
CSR 2 Report
CSR Services
NGO Consultancy
NGO Handholding
Govt Grants Support
Partnership
Angel Investors
Venture Capitalists
Co-Working Spaces
Banks and NBFCs
Incubation Centres
Government Wings
Institutional Bodies
Software Companies
CA/CS/CMA/Lawyers
Press & Media Houses
Overseas Ventures
Other Startup Enablers
Contact Us