Problems with Non-conventional trademark

A trademark is a virtually perceptible sign such as name, words, label, symbol, or logo which is legally registered and this trademark represents a particular organization, company, product, or service to distinguish it from other companies or products. . For instance, there are many companies which produce mobile phones but they all should have their own unique names, symbols, designs of brand and slogans. Basically, there are two types of trademark

(i) Conventional trademark: these types of trademark categories generally included trademarks consisting of numbers, letters, pictures, logos, symbols, and words.

(ii) Non-conventional trademark: these types of trademark are mainly in the form of sound marks, smell marks, shape marks, and color marks.

With the increase in trade, technology, and fierce competition the traders came up with more sophisticated trademarks to attract their potential buyers and to effectively distinguish and uniquely identify their commercial goods and services from another. With the significant development and globalization of the economic activities and liberalization of trade and business, there is an obvious trend of expansions of the patterns of trade marks. As a response to this international trend, nearly all the countries extended their protection field of trademarks gradually, even in different degrees. In general speaking, the journey of this expansion is expressed without the limitation of visual signs, such as acoustical and olfactory perception. Although in the international society, different states hold different perspectives of this issue, it could not be denied that taking non-traditional signs, such as color signs, sound signs and smell signs into the registered trademarks and giving it relative legal protection is the mainstream design idea in the modern international world.

The efficacy of any trademark would depend on its ability to create an impact on the minds of the potential customers of that product. If the characterization of a product or its representation is unique, it would appeal to people’s perceptions and senses in a very significant manner. This has led to the advent of a number of unusual non-orthodox trademarks by manufacturers. Besides, the advent of the Internet and electronic commerce has also increased the range of signs that businesses would like to use as registered trademarks. For example, motion and sound marks would capture the attention of Internet users much more efficiently than traditional marks, which in turn have catapulted their popularity in today’s commercial world.

Trademark has been defined in Section 2(1)(zb) of the Act as any mark which is distinctive, i.e. capable of distinguishing goods and services of one undertaking from another, and capable of being represented graphically. The definition thus lays down two broad criteria that a mark has to satisfy in order to become a trademark. The definition of mark is an inclusive one, and therefore non-conventional marks can very well fit into the ambit of trademark if they satisfy the criteria of both distinctiveness and graphical representability. However, there are also several problems, which make the registration of non-conventional marks as trademarks difficult. The first problem is the distinctiveness criterion itself. Though certain non- conventional trademarks like shape and colour, can be identified uniformly by consumers, for others like smell and taste marks, perceptions about the mark may vary, giving rise to confusion among consumers. But this is only a practical difficulty and not a legal impediment to obtain registration, as a mark can acquire distinctiveness through use and thereby qualify to be a trademark, even though it may not be inherently distinctive.The second problem is the graphical representability of the mark to be registered, especially in the case of odour and sound marks.

Non-conventional trademarks are steadily gaining ground in today’s commercial world. This necessitates their registration and protection by legal machinery. The requirement of graphical representability may prove to be the greatest impediment in the way of getting such non-traditional marks like sound, smell and color registered, for they cannot be put down in pen and paper. Consequently, new methods of registering such trademarks need to be evolved, especially in view of the fact that the law in most countries today has expressly or otherwise accommodated such new types of marks as trademarks.

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