Non-Traditional Trademarks have hardly found their spot among the trademark system in India. Their scope till date stands unexplored and ventured into, making it still a grey area.
One among the many setbacks faced by non-traditional trademarks is that the present trademark search facility in India does not provide for a separate search option or a database for non-traditional trademarks. The public search that is available on the official IP website of India provides only word mark, Vienna code and phonetic search options. The E-Register which is available on the same website acts as the database for trademarks filed in India wherein the information regarding a mark can be accessed upon entering its trademark application number.
Any trademark that is filed would get segregated into ‘word mark’ or ‘label / device mark’ category. There is a specification of the nature of mark possible for Sound Mark. Many other non-conventional trademarks marks like the shape mark (eg. shape of buildings, shape of goods) or color mark, etc. are filed as label or device marks. Non-traditional marks thus become unidentifiable as such and get miscategorized.
The application guidelines state that applications for sound marks must clearly indicate that they are sound marks. Otherwise, the application will be considered as if it were a word and/or device mark (e.g. in the case of musical notation).
Considering the advent of emerging businesses and their ideas, the legislature needs to revisit the existing statutes and incorporate laws that aim at providing appropriate protection to non-conventional trademarks, which would be a motivating factor for companies and individuals to look at further protection and in turn this will help to enhance business and boost the economy.