Trademarks have been in existence for a rather long time but non conventional trademarks are of recent origin. In India, very few companies have identified the importance of registering their non-conventional trademarks. As the modern market for trade has been confined to social media and technology, there is an urgent need to protect non-conventional trademarks than conventional trademarks. Non-conventional trademarks such as the colour combinations of the logo of Starbucks, McDonalds and Dominos are easily identifiable even without the use of their brand name and hence it becomes easier to replicate any mark with the availability of technology. As the global market has widened, the need to protect the goodwill and reputation/ authenticity of brands and products has become the need of the hour.
Sounds or audio clippings can be registered as trademarks since they can be represented graphically in the form of musical notations and descriptions. Since there is a lack of pitch and the duration of notes, mere sequence of musical notes does fall under the condition of clear representation. The WIPO Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) has suggested that “offices may require that the representation of sound marks consist of a musical notation on a stave, a description of the sound constituting the mark, or an analog or digital recording of that sound – or of any combination thereof. Where electronic filing is available, an electronic file may be attached to the application. However, for some jurisdictions, only a musical notation on a stave may be considered to adequately represent the mark.” The major criteria to be evaluated while registering a sound mark is its distinctiveness. The average consumer should find exclusive association between the brand and the sound mark.
MGM’s lion roar, Intel’s music and Pillsbury’s “childlike human laugh” complies with these criteria and are trademarked. In India, the first registered sound mark was “a human voice yodeling Yahoo” in 2008. Similarly, Nokia’s sound, Tarzan’s yell, National Stock Exchange Bombay’s theme song and Raymond’s theme song have been registered as trademarks.
A colour or combination of colours can be statutorily registered as a trademark provided it exhibits strong and persuasive evidence to prove the nexus between the colours and the brand. Single colour can be a secondary trademark only if it is peculiar in nature and the nexus between the colour and brand should have been established earlier. The applicability of the colour also plays a major role in determining it as a trademark, for instance, functional colour cannot be trademarked. The registration of single colour mark has been limited due to less availability of colours. Victorinox, a knife manufacturer has registered the colour of the handle and Deutsche Telekom AG has registered a single colour as a trademark. Christian Louboutin’s red sole has been registered as a trademark because of the established nexus with the brand and distinctiveness. Standard Chartered Bank has registered the combination of blue and green as its trademark. In the case of Deere and Co. Vs S. Harcharan Singh, the Delhi High Court recognised yellow and green as in the colour scheme of John Deere’s logo as a trademark.
A shape of a product and its packaging shall fall under the realm of trademarks, provided the shape is not a result of the significant functional aspect of the product and an arrangement based on the nature of the good. Like sound mark and colour mark, shape marks shall also exhibit distinctiveness and uniqueness. The Trademarks Act, 1999 mentions that a shape mark should not be a mere result of the nature of the goods, or a shape to perform its function to obtain a technical result or a shape that gives substantial value.
The shape of Hershey’s Kisses and the shape of the bottles of Coca- Cola drink, Absolut Vodka and Bulgari are all registered trademarks. In India, Delhi High court recognised the shape of lighters from the company Zippo as a trademark.
Any sequence of pictures leading to a gesture or motion or a moving image shall be known as motion mark. Holographic images also fall under the realm of motion mark. This type of trademark has evolved as the multimedia technology kept growing. To register a motion mark, several frames or images are required to ascertain the motion. Nokia’s handshake, Lamborghini’s opening of the car door and Toshiba’s logo in motion are all registered trademarks.
Olfactory marks refer to the uniqueness in smell. The products that usually use smell as an identifier of their brand are perfumes, cleaners, cosmetics and toiletries and fabric softeners. The wording of the description of the smell has to match the olfactory senses of a prudent person, nonetheless the olfactory senses differ from person to person. The fragrance will vary in different temperatures, humidity and the conditions of wind leading to variations in intensity of the smell. We could also infer from the abovementioned statement that a particular smell may be conceived differently in different geographical area. The applicability of smells as trademarks is slightly different from that of other non-conventional trademarks as functionality of the mark stays insignificant in case of smell marks. The smell marks are classified into functional and non-functional trademarks depending upon the inherent attributes for instance, the functional aspect of a perfume. The smell of fresh cut grass has been a smell mark for Tennis balls, though the trademark is not active right now. In India, though the law recognizes registration of smell marks as trademark, this aspect is in its infancy.