With the passage of time the concept of conventional trademarks like plain words, logos and designs have evolved to incorporate non-conventional elements that help in identifying source of goods/services. One of the prominent branding strategies of 21st century is the use of non-traditional trademarks like, smell, sound, shape, taste and colour marks. Although non-traditional trademarks were in use for more than a decade, its legal protection and registrability were matters of subsequent development.
Registrability of non-traditional trademarks in India is largely dependent upon its graphical representability besides the distinctiveness criteria as the Trademarks Rules necessitate the marks to be represented in paper form. Non-traditional trademarks like smell, sound and taste marks are non-visual in nature and faces difficulty in graphical representation compared to other forms of non-traditional trademarks specifically, shape and colour marks. This is basically because, these marks depend upon human senses that may differ from person to person. This requirement has posed a challenge in the registration of non-traditional trademarks; however, Indian Trademark law has endeavoured to provide some accommodations in this behalf.
Sound Marks: Trademarks Rules 2017, facilitates the registration of sound mark by representing it in a sound file in MP-3 format not exceeding thirty seconds along with graphical representation of its notation.
Smell/Taste Marks: Trademarks Rules 2017, makes no specific mention of the smell/taste marks. No such marks have been registered till date in India as well. The requirement of graphical representation coupled with the non-mentioning of such categories of marks makes it a grey area.
However, lucidity on this matter can be expected, fairly soon, considering the rapidly growing competition that pushes businesses to think out of the box.