India: Position Of Unconventional Trademarks In India

Last Updated: 21 February 2019
Article by Saloni Gupta

As of late, the field of intellectual property has seen immense improvement, particularly with respect to trademarks. The Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") perceives different sorts of trademarks. India has additionally rolled out vital improvements in its laws to follow the arrangements of the TRIPS agreement.

A trademark according to S.2(1)(zb) of the Trademarks Act 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." From a cursory reading of the same, it can be seen that the definition is quite open ended. Any mark, be it a word, device, brand, heading, letter, numeral etc if capable of distinguishing goods and services of one person from that of another, can be registered as a trademark. Although the entire aforementioned find place in the definition of a mark, there are certain marks such as smell and single colors that do not find a mention in the Act. They can still however be protected and given trademark status.An unconventional trademark is mainly in the form of sound marks, smell marks, shape marks or color marks.1


The Indian Trademark Regime has, so far, imitated the stand of European Union as far as the prerequisite of graphical representation for a trademark is concerned. Thus, it makes registration of non-conventional trademarks much more rigorous in India than in the United States. The non-conventional trademarks possess ability of source identifier despite not being easily graphically representable. The working of US Trademark Regime demonstrates this fact.2

According to the author, assuming that a particular non-conventional mark is distinctive and is not functional, a non-conventional mark like sound, smell or shape should be given trade mark protection. Non-conventional trademarks cater to a segment of society which has, in the opinion of the researcher, been ignored in the earlier trade mark regime. This is with reference to those for whom visual perception often becomes difficult or even impossible: the visually impaired3 and the illiterate. Non-conventional marks encourage undertakings to develop new and innovative ways of branding. Companies reach out to newer markets, increasing benefits for themselves and a new segment of purchasers.

Some may argue that if smell receives protection now, a vista of intellectual property becomes exposed to potential registration;however, this is not a valid contention for arguing in favour of non-registration. It is opined that the provided the mark is not functional and is distinctive, there is no reason to prevent anything from receiving protection. Visual perceptibility should not be and is not a sine qua non for building brand association in the minds of the consumers. As observed above, non-conventional trademarks do fulfill the traditional purpose attached to trade mark protection. They also provide additional benefits. Thus, they should receive trade mark protection.


In the light of TRIPS Agreement and other related international legal instruments on trademark, there is a need for harmonization of trade mark systems worldwide.Hence, it is desirable to protect non-traditional trademarks in the interest of global trade.

There are two significant issues:

  • The harmonization of criteria for the registration of these marks, and whether an office/trademark registry that accepts for registration could apply to them by analogy the same criteria it applied to traditional marks.
  • The harmonization of modalities for registration, especially what would be considered an appropriate representation of the sign. It should be clarified whether the trademark registry should apply the same criteria of distinctiveness than for more traditional marks and what the criteria would be for graphical representation, particularly of non-visible signs.

At least the WIPO should come out with uniform guidelines concerning graphical representation of non-traditional trademarks. The WIPO Standing Committee on Information Technologies (SCIT) can provide proper guidelines with regard to the representation,description and the application of trademark principles to non-traditional trademarks. There are still grey areas in this regard:

  • The potential economic relevance of these marks for less developed markets.
  • The possibility of overlapping protection,for example with copyright, in the case of motion marks, with patent and design in case of shape trademarks.

For those signs where distinctive character can be proved, the requirement of graphical representation should not bar registration. In the modern global market, where traders market their products internationally, it is desirable to have a uniform policy among the TRIPS member states to provide for the registration of non-traditional trademarks.Where more and more jurisdictions come forward with relaxed and liberal interpretation of trademark, the inconsistencies existing in some countries surrounding the interpretation of graphical representation seem to hinder proprietors selling goods in international markets under non-traditional trademarks. This reminds the international community the urgent need to develop a uniform policy for the registration and protection of non-traditional trademarks.4


The new trademark rules have extensively laid down the procedure for application of unconventional marks. However, there is still a need for the law to catch up with modern marketing techniques that use colors, shapes, scents and sounds to make their product distinctive.Unconventional trademarks will definitely attract a new variety of customers who are more closely connected to the feel of the trademark rather than its visual appeal.


1 Shristi Bansal, 'Non-Conventional Trademarks in India' (MONDAQ, 9 March 2016) accessed 15 September 2018

2 Tanisha Agarwal, Vanshraj Mehta,'Hear Me, Touch Me, Taste Me, Smell Me: Conventionalizing Non-Conventional Trade Marks in India' (2017) Journal on Contemporary Issues of LawVol. 3 Issue 5

3 David Vaver, 'Unconventional and Well-Known Trademarks' (2005) 1 Singapore Journal of Legal Studies 8

4 Lisa Lukose, 'Non-Traditional Trademarks: A Critique' (2015) Journal of the Indian Law Institute, Vol. 57 Issue 2

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Khurana and Khurana
Obhan & Associates
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Khurana and Khurana
Obhan & Associates
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions