DIFFERENT TYPES OF UNCONVENTIONAL MARKS

SMELL MARK

• Smell is one of a person’s five senses, and organisations and enterprises have begun to show an interest in developing items with nice scents to attract customers.
• One of the requirements for obtaining trade mark registration is to graphically depict the mark, however the fundamental challenge is to graphically represent smell.
• Taking down the chemical formula of a smell will indicate the substance that was used to create that specific smell, rather than the smell itself.
• The smell should be distinct and it cannot per se be qualified to be registered as a trademark, without the required reference with the product.
• In addition, to register the smell mark, the smell should not be a naturally derived scent originating from the product and be a mere result of the properties of the product.
• Example: A Dutch company registered the scent of freshly mown grass for its tennis ball.

TASTE MARK

• Taste marks are now being accepted for trademark registration in several jurisdictions.
• The most significant legal criterion for registering a trademark is to show that the product/service is different and not deceptive, generic, descriptive, or similar to another brand.
• If the mark of a specific product or service meets the uniqueness criteria and can be graphically represented, it can be registered and protected as a trademark.
• However, how do you graphically express a taste mark, and can you describe taste with words?
• Another important lacuna is whether taste marks if granted protection under trademark law, will it conflict with the functionality doctrine?
• For instance, the taste of a mango in a mango juice cannot be granted taste protection under trademark law as it does the same function which is inherent to it, i.e., the flavor of mango.
• So, a product which is there for human consumption is disqualified for protection of trademark under taste category by applying the functionality doctrine.

TOUCH MARK

• Touch is one of a person’s five senses. The texture of a product can be exploited as a marketing approach to attract customers.
• Touch markings are one of these non-traditional marks, and in order to be registered under trademark law, they must be distinguishable to typical consumers and capable of graphical depiction.
• Texture mark is another name for touch mark. The touch mark should not just be a decoration or packaging for a product or service; it should also meet the requirements of a normal trade mark.
• The contact mark should have no bearing on the product’s functionality.
  
• It should be able to be represented graphically and should cause the consumer to link the brand with the product or service.
• Because it is difficult to graphically portray the feel of the product texture in many countries, including India, claims for protection under trademark law for touch markings are uncommon when compared to other non-conventional marks.
• Because touch markings are the least desired mark for registration due to the intricacy of the graphical representation, no such touch marks have been claimed for registration before the Controller General of Patents, Designs and Trademarks, Ministry of Commerce and Industry, Government of India.

SOUND MARK

• A sound mark is one of the non-traditional trademarks. A musical note, such as the Nokia ringtone, or a sound note, such as the ‘yahoo yodel,’ can be used to identify a product or service.
• A graphical representation of the mark is needed under trademark law, and a graphical representation of the sound mark can be shown by putting down the musical notes.
• However, registering a sound mark requires demonstrating distinctiveness and demonstrating that average consumers would associate the product or service with the sound mark.
• For instance- In India, the corporate jingle “Dhin Chik Dhin Chik” of ICICI Bank is a sound mark which is protected under trademark law.

HOLOGRAM MARK

• The ‘Hologram mark,’ which uses a hologram to identify the origin of items or services, is another non-traditional trademark.
• The hologram brand will have many hues that may be seen from various angles.
• 13 Such holographic marks prevent duplication and erroneous replication. The mark must be graphically depicted portraying all material features, including images seen from multiple angles, in order to be registered under trademark law, which is challenging because the hologram will show varying colours when viewed from different angles.
• The application for registration should contain a written specification describing the varying images of the hologram when it is viewed from different angles which is difficult to express in written form.

MOTION MARK

• A motion mark is a moving logo, a symbol, a video, or a name that is used by the company or the person who owns the product or service to attract consumer attention to their products and services.
• The creation of a motion mark is aided by computer programmes and animation software.
• Only a few countries have recognised motion markings.
• For instance, the trademarks of Motion Pictures, 20th Century Fox Movies, Columbia Pictures are widely known motion marks registered in USA, 11 where the phrase ‘20th Century Fox’ appears in three lines in golden colour while the music plays in the background and the camera moves from left top to right bottom while the phrase is brought in the middle of the screen as shown in the Ice Age animation movie and Deadpool movie.
• In India, the Trademark Act does not specify a motion mark. Graphical representation of motion marks is also problematic since the appropriate representation of motion marks will involve movement of the mark’s specific word, logo, symbol, etc., as well as sound, which is difficult to portray in textual form.
• In India, a motion mark cannot be presented for registration on its own; instead, it must be provided to the registrar as a combination of marks.
• Registration of motion marks under trademark law is uncommon in India due to the high level of examination required for registration.

INDIA’S POSITION

Except for sound markings, which are listed in Rule 26(5) of the Trade Mark Rules, the Indian Trademark Law does not have any particular rules dealing to atypical trademarks.

Unconventional marks are not defined in the Indian Trademark Law, and there are no processes for registering them. As a result, there are no provisions in place for such unusual marks, which must be addressed. The requirement of graphical representation for trademark registration in India is proving to be a difficulty for the registration of atypical trademarks.

The legal prospects of recognising smell and taste as legitimate trademarks in India have yet to be recognised and explored, since the challenges related with their graphical depiction must be studied and handled. Furthermore, because India is likely to take the same stance as the EU – and, to a lesser extent, the US (which is more liberal) – odours and aromas that are inherent or crucial to the product would be exempt from registration. There is a potential that smell and taste marks will not be given registration on the basis of intrinsic distinctiveness until India develops more jurisprudence on the topic.

In order to prove acquired distinctiveness, there may be a significant burden to show that the smell or taste has come to be associated exclusively with the applicant.

Adoption of colour branding methods, sound and form marks, and unconventional trademarks can play a key part in corporate branding, ensuring that the purpose and quality of products/services are not the only factors that retain their attractiveness in increasingly competitive markets. While we wait for more jurisprudence in this area, the existing trend indicates that Indian courts/tribunals are willing to use a broad approach in order to preserve atypical marks.