Unconventional Trademarks In India

In the realm of intellectual property rights and trademarks, the term “unconventional trademarks” has emerged as a captivating and evolving concept. These marks defy traditional definitions, often blurring the lines between what is considered standard and what is extraordinary. In India, where innovation knows no bounds, unconventional trademarks are gaining prominence, and they are shaping the future of branding and intellectual property protection. In this article, we delve into the world of unconventional trademarks, their types, famous examples, registration challenges, and the current legal status in India.

Understanding Unconventional Trademarks

Unconventional trademarks, often referred to as non-conventional trademarks, diverge from the standard or traditional forms of trademarks we are familiar with, including logos, brand names, or slogans. These non-traditional trademarks are usually linked to human sensory experiences and perceptions, such as smell or taste marks, which can only be perceived by humans. That is not it, there are various other types of unconventional trademarks, let’s understand each one in detail.

  1. Sound Marks: These trademarks are characterized by a sequence of musical notes, distinctive sound patterns, or memorable jingles. A prime example is the iconic Nokia tune, instantly recognizable by its distinctive sound.
  2. Color Marks: These trademarks are defined by a specific color or a unique combination of colors associated with a product or service. A renowned instance is the use of a particular shade of pink for Owens-Corning insulation, making it a well-established color mark.
  3. Shape Marks: These marks pertain to the three-dimensional form of a product or its packaging. An illustrative example is the distinctive shape of the Coca-Cola bottle, which has become a timeless symbol in the world of branding.
  4. Taste Marks: Taste marks are based on the unique flavor or taste of a product. For example, a specific blend of herbs and spices in a seasoning mix.
  5. Smell Marks: Smell trademarks are based on specific scents or fragrances associated with a product or brand. Perfumes, scented candles, and aromatic products often rely on smell marks.
  6. Motion Marks: Motion marks involve dynamic movement, often seen in animated logos or specific sequences of motion. An iconic motion mark is the roaring lion featured in the MGM logo, instantly evoking a sense of cinematic grandeur.
  7. Position Marks: These trademarks define the specific placement or positioning of a sign on a product or its packaging. An emblematic instance is the strategic location of the Mercedes-Benz logo, typically positioned on the front grille of the car.
  8. Hologram Marks: Hologram marks utilize holographic images that exhibit change or movement when viewed from varying angles, adding a futuristic and captivating dimension to branding.

Challenges in registering Unconventional Marks in India

The process of registering unconventional trademarks in India presents a multitude of challenges, primarily centred around the requirement of graphical representation. According to Section 2(zb) of the Trademarks Act, 1999, a trademark is explicitly defined as “a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others ” This definition implies that a trademark should have a visual or graphic element that can be replicated in tangible or digital forms, and it must be distinct and easily distinguishable.

  1. Graphical representation

Sound Marks, representing a series of musical notes, jingles, or distinctive sound patterns, indeed pose a challenge in terms of graphical representation. However, it’s worth noting that they can be represented by notating the musical notes or providing a detailed description of the sound. In India, sound marks enjoy a relatively smoother registration process compared to other unconventional trademarks due to this capacity for graphical representation.

Color marks, despite their visual distinctiveness, pose difficulties due to the subjective nature of color perception, making the replication of precise shades or combinations in graphical form imprecise. Three-dimensional shape marks, exemplified by iconic designs like the Coca-Cola bottle, resist easy graphical representation as the intricate details often elude accurate capture in two dimensions. Further, presenting smell and taste marks graphically is challenging due to their non-visual nature and the subjective, complex, and evolving aspects of these sensory experiences. Motion marks, with their dynamic movements, can lose their essence when translated into static graphics, a challenge faced by animated logos. Marks defined by precise positioning on products or packaging, though distinctive, struggle to find precise graphical equivalents. Furthermore, taste, texture, and hologram marks, involving sensory and three-dimensional experiences, challenge conventional graphic representation methods.

  1. Distinctiveness

Furthermore, the requirement of distinctiveness introduces an additional layer of complexity. Unconventional marks, given their nature, may not inherently exhibit this distinctiveness. As mentioned earlier, many unconventional marks are linked to human sensory experiences and perceptions. Since human memory is imperfect, people might struggle to recall or could easily confuse such marks with others from different sources. This underscores the necessity to demonstrate acquired distinctiveness through extensive use and recognition in the market. The convergence of these factors collectively creates substantial obstacles in the registration of unconventional trademarks in India.

However, India is gradually adapting to the evolving landscape of unconventional trademarks. The judiciary and the Intellectual Property Office have recognized the importance of these marks in contemporary branding. Notable cases have set a precedent for the registration of unconventional marks, emphasizing the need for flexibility in interpretation.

For instance, the distinctive sound of a Harley-Davidson motorcycle’s engine was recognized as a sound mark. Similarly, the 3D shape of the Kit-Kat chocolate bar was registered as a shape mark.

Way Forward

As the world of branding continues to innovate and push boundaries, the concept of unconventional trademarks in India is expected to gain further recognition and acceptance. Brands will continue to explore new avenues of trademark protection, and the legal framework will likely adapt to accommodate these changes.

In conclusion, unconventional trademarks have transformed the way we perceive and protect intellectual property. While registering these marks may pose unique challenges due to the requirement of graphical representation and distinctiveness, the significance of well-known status and evolving legal frameworks in India offer hope for brand owners. 

Frequently Asked Questions

  1. What are non-traditional marks in India?

Non-traditional marks in India encompass sound, color, shape, and motion marks, which deviate from standard text and logo trademarks.

  1. What are conventional marks?

Conventional marks refer to traditional symbols, logos, or brand names commonly used for trademark registration. These are standard forms of trademarks.

  1. What are distinctive marks examples?

Distinctive mark examples include the Apple logo, Nike’s swoosh symbol, and the Coca-Cola brand name, which are easily recognizable and associated with specific companies or products.

  1. What is an unconventional form of trademark?

An unconventional form of trademark includes unique elements like sound patterns, specific product shapes, or non-standard visual representations, which depart from traditional textual or graphical trademarks.

Share:

Facebook
Twitter
LinkedIn
WhatsApp

Categories

Search

    Categories

    Recent Posts

    • All Post
    • Copyright
    • Design Patents
    • Patent Filing
    • Patent Search
    • Trademark

    Related Posts

    Design or Patent? Securing Your Auto Innovations the Right Way

    In the automobile industry, intellectual property (IP) is of utmost important in order to protect new ideas and technologies. Two key types of IP that are often discussed in the context of the automotive sector are design protection and patents. While these two serve different purposes, they often overlap, especially in the automobile sector. In this article, we will cover what design and patent protections are, how they work, where they overlap, and what challenges businesses face. What is Design Protection? Design refers to the look or aesthetics of a product. In the field of automobile industry, design protection can cover the external shape of a car, the design of its parts, or its internal features. Design protection aims to stop others copying the distinctive look of a product. The Design Act and Eligibility In India, design protection is governed by the Design Act, 2000. To qualify for design protection, the design must meet these requirements: What Can Be Protected as a Design in the Automobile Industry? In the automobile sector, you can protect many things as a design, including: For example, the shark fin antenna on luxury cars or the unique grille of sports cars are examples of designs that can be protected. What is a Patent? A patent protects inventions—novel, useful products or processes. In the automobile industry, patents typically protect technological innovations and mechanical systems that make a vehicle work better. The Patent Act and Eligibility In India, patents are governed by the Patents Act, 1970. To get a patent, the invention must meet these criteria: Protection Time for Patents Patents last for 20 years from the filing date, as long as you pay maintenance fees. After that, anyone can use the invention freely. What Can Be Patented in the Automobile Industry? In the automobile sector, patents can cover things like: For example, Tesla’s electric powertrain or BMW’s advanced braking systems are patented technologies. Overlap Between Design and Patent Protection Design and patent protections have different purposes, but they often overlap in the automobile industry. A single product, like a car, can be protected by both design and patent. Here’s how: Challenges of Overlapping Design and Patent While having both design and patent protection can be helpful, it also comes with challenges: How to File for Design and Patent Protection? Filing for both design and patent protection requires careful planning and understanding of the legal process. It’s important to work with a lawyer who knows how to handle both types of protection. Conclusion The interplay between design and patent protection in the automobile industry provides opportunities and challenges for companies that want to protect their innovations. However, it also comes with challenges like complexity and costs. By understanding the differences between design and patent protection, and with the help of expert legal guidance, businesses can better protect their innovations and stay ahead in the competitive automobile market. Contact Intellect Vidhya Solutions—your partner in protecting intellectual property for any questions or needed support in navigating the complexities of design and patent law.

    Read More »
    February 7, 2025 No Comments

    AI Voice Cloning and Its Copyright Legalities: The Arijit Singh Case

    The fast developments in AI voice synthesis led to in a revolutionary era in technology: immediate voice cloning. Modern algorithms can now produce a nearly identical replica of an individual’s voice using just a few minutes of their voice recording. Most of us probably have heard a number of songs that include the voice of our Prime Minister; these recreated tracks are a clear example of AI voice cloning. Such technology has allowed creators and businesses to create things like songs, speeches, etc., in the unique yet identifiable voices. It could enhance creative and personalized media but, in doing so, also creates complex ethical and legal difficulties, particularly with respect to copyright, privacy, and personality rights. AI Voice Cloning: Understanding the Technology Voice cloning is dependent on the cutting-edge of deep learning and machine learning algorithms to analyze an individual’s voice frequencies, tone, and accents. Once those specific characteristics are recorded, they can be reproduced digitally in order to create audio that as closely as possible resembles the original speaker. This feature, when paired up with Speech Synthesis Markup Language (SSML), enables users to personalize aspects like pronunciation, pitch, and speed, making it as realistic and lively a voice as possible, closely identifying with a natural human voice. These are great possibilities, but there is a flip side where this technology can be abused if used without the knowledge of the person whose voice it matches. The Arijit Singh Case: A Significant Decision on Personality Rights The recent ruling by the Bombay High Court in favour of Bollywood singer Arijit Singh brought attention to the legal issues surrounding AI voice cloning. The court, in the present case, provided interim relief to Arijit Singh, recognising that his voice, name, and likeness are essential components of his identity, referred to as “personality rights.” Arijit Singh initiated legal action against Codible Ventures LLP, a firm that allowed users to generate content using his voice without obtaining consent. The court’s decision to define the unauthorised use of Singh’s voice as a violation of his rights sets an important precedent. It emphasises that an individual’s voice, much like their name or image, is an integral aspect of their identity and is protected under personality rights.  The court acknowledged Singh’s status as a well-known and influential artist, pointing out his reputation and goodwill in India. The court highlighted that previous cases concerning personality rights indicate that using a celebrity’s voice or personal traits for commercial gain without permission constitutes a clear violation of those rights. This ruling clearly suggests that tools that allow for the generation of content in a celebrity’s voice without their permission infringe upon their rights and pose risks to their economic and public standing. Legal Considerations: Copyright, Personal Rights, and More The decision involving Arijit Singh carries major consequences for several legal concepts, such as copyright, intellectual property, and personality rights. 1. Personality Rights: This case highlights that a celebrity’s name, voice, and likeness are integral parts of their personal brand and identity. Protecting these rights stops illicit third parties from profiting off someone else’s identity and plays a crucial role in protecting their career and livelihood. 2. Copyright and Ownership: The complexities of ownership arise when dealing with AI-generated content that utilises cloned voices. Is the voice model subject to copyright protection, and who holds the legal rights to the content generated with that voice? When a voice model originates from a public figure, the boundaries of copyright law can become vague. It raises questions about who actually holds the rights: the creator, the individual whose voice is replicated, or the developer of the AI. 3. Economic and Reputational Concerns: The unauthorised use of a prominent voice can have adverse impacts on the person’s professional life. In Singh’s situation, his reputation and popularity render his voice a crucial element of his personal brand. The court’s decision recognises the potential harm that unauthorised use of his voice may pose to his professional standing and revenue. 4. Right to Publicity: This case expands the idea of an individual’s control over the commercial use of their identity. With the growing ease of AI voice cloning, it is becoming more vital to safeguard individuals against the unauthorised use of their identity. This acknowledgement offers a foundation for protecting people’s identities and personal characteristics in the era of AI. Setting Standards for AI Voice Cloning The Arijit Singh case highlights the pressing need for well-defined and thorough regulations concerning the commercial application of AI voice cloning technology. Considering the possibility of misuse, here are some suggestions to tackle these challenges:  Explicit Consent Requirements: The use of an individual’s voice or likeness must obtain clear, documented consent, especially when it pertains to commercial purposes. Transparency: Informing consumers about the use of an AI-generated voice is crucial to prevent any potential misunderstanding, particularly when the cloned voice closely resembles a well-known individual. Defining Usage Boundaries: Setting clear boundaries between personal and commercial applications can help prevent misuse while allowing individuals to utilise the technology for their own non-commercial purposes. Conclusion This ruling by the Bombay High Court, giving practical effect to Arijit Singh’s right over his voice, is a positive balancing act between harnessing the modern technology of AI voice cloning and protecting individual rights. Considering the new technology of voice synthesis, society must develop legal protections against the appropriation of one’s voice, name, and likeness. This ruling is a landmark case in that it shows how the law can adapt to emerging technology and preserve innovation while ensuring the protection of individual rights against invasive practices. Such frameworks will be critical to ensure the responsible use of this powerful tool, prevent misuse, and safeguard individual identities as we explore its potential further.

    Read More »
    December 11, 2024 No Comments

    What is Trademark Squatting? Insights into the Legal Battle Over Brand Rights

    Trademark squatting refers to the practice where individuals or entities register popular brand names, trademarks, or domain names with the aim of making a profit from them. This practice can pose legal difficulties for legitimate brand owners, as opportunists frequently try to sell these assets back to companies at inflated prices, anticipating that the demand for these names will result in a substantial profit. This issue may not be new, but the evolving digital landscape and the growing significance of online branding have amplified its effects. Understanding Trademark Squatting Trademark squatting involves the unauthorised registration or use of a trademark that closely resembles a well-known brand or business name, with the aim of capitalising on the brand’s reputation. This practice typically takes place in two areas: Trademark Squatting Under Indian Law The Trademarks Act, 1999 regulates trademark matters in India. While it doesn’t directly mention “trademark squatting,” it sets up the legal structure for safeguarding registered trademarks. Indian law provides two primary legal remedies to address the issue of squatting: 1. Trademark Infringement: When a squatter utilises a registered trademark, the legitimate owner has the option to initiate a lawsuit alleging trademark infringement. Courts evaluate aspects such as similarity, the purpose of registration, and any damage inflicted on the original brand. 2. Passing Off: When a brand owner has not registered their trademark, they may pursue a claim of passing off, which is a remedy recognised by common law. The brand owner must show their goodwill and establish that the squatter’s use of the brand leads to confusion for consumers.  Furthermore, in situations concerning domain names, India’s .IN Dispute Resolution Policy (INDRP) directly deals with disputes related to .IN domain names, whereas international cases involving generic domains typically come under the Uniform Domain-Name Dispute-Resolution Policy (UDRP). Trademark Squatting and Cybersquatting Trademark squatting and cybersquatting are interconnected concepts, yet they vary in their extent. Trademark squatting involves the misuse of trademarks across various market segments, whereas cybersquatting is focused specifically on internet domain names. Both, however, seek to gain from unauthorised registration, often expecting that the rightful brand owner will repurchase the asset to prevent possible confusion among consumers. Recent Judgment on Trademark Squatting In a recent case involving the domain name JioHotstar.com, the registrant claimed they purchased the domain thinking that Jio (the telecom brand owned by Reliance Industries) and Disney+ Hotstar were likely to come together, based on speculation in various industry circles. They even registered this domain name, assuming that if Jio and Disney merged, Jio could brand it as JioHotstar. The registrant confessed that the aim was to sell the domain to Reliance, stating, “It was a money-making venture to pay for education at Cambridge.” The above explanation notwithstanding, the nature of this cybersquatting case was so textbook (cybersquatting being a specific type of trademark squatting, where instead of a traditional trademark, the focus is on the domain name) that the legal outcome was predictable. In recent years, the judgment of courts globally, including in India, has increasingly emphasized intent in matters related to trademark and cybersquatting disputes. In this case, the registrant’s objective was clearly to profit from a potential merger by flipping the domain back to the brand itself—a motive devoid of any legitimate business interest. This leans towards bad-faith registration, a significant factor that courts examine in cybersquatting cases. In this instance, because JioHotstar.com was not intended to host a legitimate business or service but to be resold for profit, it was categorized as bad faith under section 4(b)(ii) of the policy. Courts generally view such intentions negatively, and if the legitimate brand owner challenges the domain, the domain owner is likely to face difficulty defending their position. The example of *JioHotstar.com* highlights the need for courts to take a firm stand: domains registered with the intent of exploiting brand equity should be invalidated, even if the challenge by the trademark owner is based on their interests. Strategies to Prevent and Address Trademark Squatting Brands can implement proactive measures to steer clear of the difficulties associated with squatting: Conclusion Trademark squatting remains a significant legal challenge for global brands, impacting brand integrity in both online and offline environments. With courts increasingly focused on protecting the rights of trademark owners, cases like JioHotstar.com illustrate how the legal framework discourages attempts to exploit recognised brands for personal gain. Companies can protect their brand and prevent squatters from taking advantage of their intellectual property by actively registering trademarks and monitoring domain names.

    Read More »
    November 28, 2024 No Comments

    Food Plating and Copyright Protection in India

    Food plating — the positioning and presentation of food on a plate has matured into its own craft; showcasing chefs around the globe serving up more than just taste alone. In addition to aesthetics, it sets up your dining experience and reflect the brand identity of a restaurant. Chefs and restaurateurs have resorted to intellectual property (IP) law in different countries around the world, for protecting their unique forms of plating. But in India, copyright law does not allow for food plating to be protected easily: the same is because of two key reasons; firstly, food being highly perishable items and secondly primary purpose of using dishes as they serve a functional role. This article takes a closer look at the intersection of Indian copyright law and food plating, covering eligibility requirements and mechanisms for protection as well as some significant challenges. Copyright Eligibility for Food Plating in India Under the Copyright Act of 1957, copyright protection in India applies to original works of art, literature, music, and more. For a work to be eligible, it generally must meet two main requirements: However, Indian Copyright Law does not automatically deem the plating of food copyrightable. Chefs have no immediate legal protection for their plating, but by photographing it they can at least preserve the creative arrangement in a fixed medium. This approach means the copyright is granted to the photograph or video itself—not the plated arrangement—which still presents some limitations but can deter unauthorized reproduction of the image. Protecting Food Plating in India: Alternative Approaches Despite the challenges, several IP options could provide indirect protection for food plating in India: Key Challenges in Achieving Copyright Protection for Food Plating Even with these alternatives, protecting food plating remains challenging in India for several reasons: Practical Recommendations for  Chefs and Restaurateurs For chefs and restaurant owners in India interested in protecting their food plating styles, here are some practical steps that can help: Conclusion Food presentation does not enjoy copyright protection in India, as food is transient (disappearing after a meal), functional, and perishable. Although food plating does not fall under the traditional copyright regime, chefs or restaurateurs can explore other methods—such as photographic copyright, branding protections, contractual protections, and trade dress—to safeguard their culinary creations’ presentation. While these solutions provide some level of protection, they ultimately highlight the issue that, in the Indian legal context, food plating lacks force under copyright law. If chefs hope to protect their plating artistry in India, the key is to focus on brand-building and be inventive with alternative IP protections.

    Read More »
    November 11, 2024 No Comments