TIN TIN TIDIN! These words sure have reminded you of the popular jingle of Britannia, or the famous lion’s roar of MGM Studios has become unique over the years. Ever wondered how?
Section 2(1)(zb) of the Indian Trademarks Act, 1999 defines a trademark as “any mark which is distinctive, and capable of distinguishing goods and services of one person from that of other.” A traditional trademark expresses as a word, symbol, design or a combination of any of these. But many marks are ambiguous and vague non-traditional marks. These non-traditional marks divide into visible and non-visible signs. Visible signs include colours, shapes, moving images, holograms, positions, while non-visible signs include sounds, scents, tastes, and textures.
It is easy to identify a trademark represented in colours or in shape. The debate arises in cases of non-visible signs, especially marks involving aural and olfactory indicators. According to US Patents Office (USPTO,) any non-traditional mark can be registered as long as it distinguishes the source of the goods and services. In India, the Trademark law focusses on graphical representation. India has a very rigorous process of registration of non-traditional trademark. As per Rule 26(5) of the Trade Marks Rules, 2017, sound trademarks can be registered by submitting a sound clip along with the musical notations, where the length of the sound clip should not be more than 30 seconds. A good example is the whistling sound of ICICI bank, the first Indian entity to get a sound trademark registration for its jingle. Other examples of sound trademarks registered in India are the four-note bell sound of Britannia Industries, Cisco’s tune for conferencing on Web Ex, Yahoo’s sound, and Nokia’s guitar notes on switching on the device.
The Indian trademarks law requires the applicant to provide evidence to show that the smell or taste mark is solely associated with them, exclusively designate their goods/services, and that the public associate these with the goods/services of the application.
But, among the non- traditional trademarks, most customers can recognize only the shape and colour marks consistently. Smell and taste marks fall short of distinctiveness, as the recognition about the mark differ from person to person. This makes it difficult for an applicant to prove the distinctiveness of the mark.
Non-conventional trademark creates a psychological impact on consumers and it has gained some significance in recent times. The concept and law on non-conventional trademarks are evolving in India. This paradigm shift from the traditional concept has gained commercial significance and there is a need for uniformity for the same across the globe.