Nature and Scope of Non-Conventional Trademarks
Traditionally Trademarks of name, logo, symbol, tagline get registered and are referred to as conventional trademarks. Although now a days trademark isn’t limited to only registration of name, logo, taglie, symbol etc but it also includes Trademark of Smell, taste, Texture, Hologram, motion, shape and therefore the ambience of the products and services. Thus when a mark goes beyond the realms of the normal conventional category of being judged solely by the attention it’s referred to as Non-Conventional marks. within the Trademarks Act, 1999, it defines non-conventional Trademarks also .
Problems with reference to Non-conventional Trademarks
Consumers identify certain non-conventional trademarks with reference to their shoes and hues but when it involves taste and smell marks it can cause confusion within the minds of consumers. so as to get registration as a mark, it can acquire distinctiveness albeit it’s not inherently distinct through its use and thus qualify to be a trademark.
Graphical representation of Non-Conventional Marks
Graphical representation of a mark is taken into account to be a sine qua non so as to register a trademark in India. A trademark application must be graphically represented and therefore the mark must be capable of being put during a physical form within the register. it’s also needed to be published during a journal. Graphical representation of non-conventional marks may be a practical problem. it’s considered to be a significant problem in registering the non-conventional trademarks. Non-conventional trademarks are as follows-
Recently this mark has gained popularity in Trademarks. within the case of Ralf Seickman Vs German Patent and Trademark Office Database , during this case the smell mark wasn’t taken into consideration and was rejected because graphical representation criteria weren’t fulfilled. the most issue that arose during this case was that whether olfactory mark which is described as balsamically fruitys cent with hint provided of cinnamon might be registered as a trademark with reference to the certain services. ECJ during this case has stated that graphical representation isn’t sufficient and it must be clear and precise to clear the proper of exclusivity and also it must be considered intelligible to those persons who have interest in inspecting registers.
The Graphical representations are often done by musical notations and written descriptions. Within the case of Shielf Mark BV Vs Joost Kist h.o.d.n memex, ECJ held that the need of graphical representation isn’t met when the sound is represented graphically by means of description using written communication . When sound is shown as a stave divided into measures, musical notes etc the graphical representations are said to be accepted. it’s even been stated that alongside it a written description of a mark within the sort of musical notes must also be needed to be filed with the registry.
Single colour and amalgamation of unique colour of two forms a color mark. Combination of colours are often included in several national legislations. During a case of Libertel Groep BV Vs Benelux Trademark office, the difficulty was raised whether one colour mark is often registered as a Trademark? The ECJ reiterated the standards of graphical representation as stated in Ralf Seickman case, it had been held that such representation must be clear, precise and self contained. It must be easily accessible, durable and objective.
In the cases associated with scent trademarks the registry takes place with reference to shield mark doctrine. Scent marks got to be distinctive of the merchandise and it must not be utilitarian or functional. Thus the fragrance of the scent/ perfume can’t be registered, however the outline of the scent is required.
Protection of Non-Conventional Trademarks in India
When it involves India, in India only a few non-conventional trademarks are registered. In India doctrine of shield mark with reference to graphical representation of sound marks are imported. Manual describes that marks which aren’t capable of distinguishing one from others aren’t meant to urge registration. In India Yahoo!s yodel is the first ever no conventional trademarks to be registered. it had been represented through musical notes. Indian Trademark industry has also registered the sound mark of ICICI bank within the notes which form the jingle. For people that are visually impaired or illiterate, distinguishing character of the form or sign plays a crucial role.
India is additionally incorporating in registration of non-conventional trademarks, although few obstacles in trademark registration must not be considered as discouragement. Non-conventional trademarks create a psychological impact on consumers and it’s gained some significance in recent times. India has accepted the sound mark of intel. The concept and law in India are evolving day by day.