Non-traditional trademarks are those which do not fall under the ambit of conventional marks such as letters, numbers, logos, pictorial description, symbols, or a combination of such elements.
Take the silky purple of Cadbury, or the sound of Yahoo!. Such elements, despite not being conventional in nature, can be easily recognised by the consumers, the origin thereof being directly attributable to the owners. For a non-traditional trademark to be inclusive under the Trade Marks Act, 1999, it must satisfy the criteria of being distinctive in nature as well as be capable of being graphically represented. It may be noted that non-traditional trademarks are generally not deemed distinctive under the Trade Marks Act, 1999, rather the same are deemed to have acquired secondary distinctiveness for the purpose of registration as such. Furthermore, just like the traditional marks, non-traditional trademarks must also have the ability to differentiate the goods and services of one person from another.
TYPES OF NON-TRADITIONAL TRADEMARKS
- COLOUR:
A distinctive colour is likely to stay on the mind of the consumers. However, as mentioned above, registration of a single colour as a trademark would require evidence of acquired distinctiveness in India. A combination of colours stands a better chance of registration as a non-traditional trademark in India, following the same suit of being capable of distinguishing the goods and services of one from another.
The onus will be on the Applicant to show continuous bonafide usage as well. Colgate Palmolive Company v. Anchor Health & Beauty Care Pvt. Ltd1, elaborates on the matter of using a combination of colour to to attribute the brand of a company.
In Deere and Co v S Harcharan Singh2, the Delhi High Court declared the word mark JOHN DEERE, the leaping deer logo and the company's green-and-yellow colour mark to be well-known trademarks. The concern for such a trademark lies with the limited number of colours which means that granting exclusivity will sooner or later deplete the available stock. Further there could be heated debates over different shades of color, which would hinder the trademark registration process. - SOUND:
Sounds can play a big impact on a consumer's perception of a brand / mark. Sound helps identify a product/service and adds value to the brand. A sound mark essentially is a sound being used to uniquely identify the commercial origin of the product/service. The key is that only musical notes, being capable of being represented as musical notations, are acceptable as non-traditional trademarks whereas noises like a car honk will not. Such musical notes / notations for registration of a sound mark is to be submitted as a sound clipping in MP3 format alongwith the application before the Trademarks Registry. The Yahoo! Yodel was the first sound mark to be granted registration by the Trademark Registry. Internationally, some famous sound marks registered are the Tarzan yell, the lion roar of MGM, the intro music of Twentieth Century Fox Films and the bell of New York Stock Exchange as well as McDonald's "I'm lovin' it" jingle. - SMELL
A smell mark is used when the source identifier of goods is a smell. In India, no smell mark has been registered till date by the Trade Marks Registry. Even globally, very few scents have been recognised as trademarks / non-traditional trademarks capable of being granted registration, primarily because of the inability of the same being represented graphically. - THREE-DIMENSIONAL MARKS
A three-dimensional shape or stylisation can be protected / registered as a trademark in India. Under the Trade Mark Rules, the same are deemed capable of being graphically represented by reproducing a two-dimensional graphic or photographic reproduction, with at least five different views of the said mark. Three-dimensional marks can be visually appealing and inherently distinctive as well, thereby being capable of distinguishing the goods of one from another. Some examples of three-dimensional marks which have been registered and accepted as trademarks in India are, inter alia, the packaging of Toblerone Chocolate and the distinct shape of a Zippo Lighter. - MOTION MARK
A motion mark is a moving animated object or logo. Microsoft windows logo, which can be seen once we open the windows PC or laptop, is a well-known example of a registered motion mark. The opening and closing of Lamborghini doors have been protected under motion marks in United States of America.
Footnotes
1. 2005 (31) PTC 583 Del.
2. 2015 (63) PTC 433 (Del).
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