What is a Trademark?
The Indian Trademarks Act, of 1999 under Section 2(zb) defines a trademark as a kind of intellectual property
that marks and differentiates products or services from others via the use of a recognized symbol, design, or
expression. A trademark can be owned by any individual, corporation, or legal body. Anyone who plans to use
or proposes to utilize a brand name commercially must file a trademark and pursue it for its registration to stop
others from using the same or similar brands name for their product or services.
Types of Trademarks in India
Trademarks are often used to identify the source, owner, or developer of a product or service. There are several
types of trademarks a business can choose from, including logos, names, taglines, and product brands. However,
the use of any mark may be mistaken for an existing one is prohibited. Soft drink firms, for example, are not
permitted to use Coca-Cola-like logos or names.
The different types of trademark in India:
1. Word Marks
It includes one or more words, letters, numerals or anything written in standard character like brand name ,
slogan , tagline. In simple words where one wants to register only the letters, words or combination of words or
numerals without any artistic and pictorial representation can register the trade under word mark category.
Flexibility is the biggest benefit that the word mark provides as after the registration of the mark; it can be used
in any design, style and font. Some good examples of word marks are Microsoft, Tata, KFC, IBM
2. Device marks
It includes any label, sticker, monogram, logo or any geometrical figure with or without wordelement in it.
Device marks may also include colors but if the registration is made along with colors then the same
combination of colors have to be used to claim trademark protection. Device mark is eye-catching and attractive
which makes it easy for the public to remember. When unique devices are used it helps in recognition of the
business because people may not remember the name but they can easily remember the logo. Apple logo is a
good example of device mark
3. Sound Mark
Sound marks are features acquired by hearing and characterized by their unique sound. It is a trademark where
sound is used to perform the trademark function of uniquely distinguishing the commercial source of products
or goods and services. According to the new provision the sound submitted should be in MP3 format and it
should not exceed 30 seconds of length and visual representation of the sound notations. YAHOO was the first
company to register a sound trademark across the globe. In India ICICI bank was the first to register sound as a
trademark. Some of the registered sound marks in India are:
Yahoo – (Human voice yodelling Yahoo)
National Stock Exchange – (Theme song)
ICICI Bank – (Corporate jingle – Dhin Chik Dhin Chik)
Britannia Industries (Four note bell sound)
Cisco – (Tune heard on logging in to the conferencing service Web Ex)
Edgar Rice Burroughs – (Tarzan Yell by its toy action figure)
Nokia – (Guitar notes on switching on the device)
4. Three dimensional trademark
It includes both shapes of goods or packaging. It is a non-conventional trademark and to get its registered the
shape of goods or its packaging must be distinctively different from the competitors in the market and is enough
for the public to recognise the origin of the goods , without the aid of other word marks on it.In simple words it
must be able to perform the function of the trademark.
5. Color Trademark
Trademark act permits registration of combination of colors to represent the goods and services.When the
distinctiveness is claimed in the combination of colors with or without device it is called color mark. In
trademark law the color could be considered to acquire distinctiveness when the purchasing public recognises
the product or brand by particular combination of color only. In this case the brand is the color. According to
section 10 of the Trademark Act,1999 , Colour trademark can be of a single color or combination of colors, but
Section 2(1)(m) of the Trademarks Act, 1999 requires a mark to be a ‘combination of colours’ shows the
intention of the legislature to not allow single-colour trademarks. Thus it is suggestible to file for a combination
of colours as a trademark but where a trade mark is registered without limitation of color, it shall be deemed to
be registered for all colors.
6. Smell Marks
When the smell is distinctive and cannot be mistaken for another product, a smell mark can be recognized.
Consider perfumes.
7. Shape of goods
Trademarks can be registered in shape or goods if they have a distinctive shape. But it cannot be registered if the
-Shape of goods which results from the nature of goods themselves; Shape of goods which is necessary to obtain
a technical result; Shape of goods, which gives substantial value to the goods. Shape of goods are also non
conventional trademarks.
In nutshell , Consumer recognition and acquired distinctiveness becomes an important factor in granting a non-
conventional trademark like Shape of goods, 3-dimensional trademark, sound mark, smell mark.In granting
registration of the non conventional trademark the Registry needs to evaluate the balance of convenience of the
Applicant of the mark with the other traders who may be using elements of such trademarks in good faith.
Case Laws
1. In Godfrey Philips India Ltd v Girnar Foods and Beverages Ltd [11] , it was
held that a descriptive trademark may be entitled to protection if it has
assumed a secondary meaning which identifies it with a particular product or
as being from a particular source.
The acquisition of distinctiveness is a laborious and time consuming process.
Even so no time has been stringently fixed for a trademark to become
distinctive unlike in the British Act of 1919 which states that 2 years bonafide
use was considered enough. There can be cases where for sundry reasons a
trademark becomes distinctive in a really short time or another case where a
trademark never acquires distinctiveness. Hence it is not possible to rule out
any hard and fast rule regarding the time period required to acquire
distinctiveness.
2. In Ishi Khosla v Anil Aggarwal [12] it was held that to acquire secondary
meaning, it is not necessary that product has to be in the market for a
number of years, if a new idea is fascinating and appeals to the public, it
may become a hit overnight.
3. In Easynet Group Plc v Easygroup IP Licensing Ltd, the question was
whether the trade mark `EASY.COM' was descriptive. It was held that the
proper approach is to look at the mark as a whole and to see if the mark as a
whole is descriptive. In the course of that exercise, it is permissible to
consider the descriptive nature of the separate elements of the mark but
ultimately it is the overall assessment that matters.
