UNCONVENTIONAL TRADEMARKS

INTRODUCTION

Trademarks are essential for identifying products and services in the marketplace and are a
symbol of a company's integrity and good name. Although words, logos, or symbols are
usually included in traditional trademarks, the advent of non-traditional trademarks has
broadened the scope of intellectual property law. This paper explores the idea of trademarks
that are not commonly used, as well as their importance, difficulties, and changing legal
environment.

UNDERSTANDING UNCONVENTIONAL TRADEMARKS

Unconventional trademarks, sometimes referred to as non-traditional or non-conventional

trademarks, cover a wide range of distinguishing indicators that deviate from the standard
definition of a trademark. These could be flavours, holograms, colours, motions, noises,
smells, or shapes. Unconventional trademarks aim to enhance brand awareness and
uniqueness by appealing to other senses, as opposed to just visual characteristics like
traditional trademarks do.
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.

SIGNIFICANCE OF UNCONVENTIONAL TRADEMARKS

Unconventional trademarks give companies creative ways to stand out in a competitive

market with their goods and services. Utilising distinctive sensory experiences, including
distinctive sounds or smells, businesses may develop memorable brand identities that connect
with customers more deeply. Furthermore, by using non-traditional trademarks, companies
can preserve aspects of their branding that are difficult to convey using conventional symbols
or language, maintaining their competitive edge.

EXAMPLES OF UNCONVENTIONAL TRADEMARKS

A number of noteworthy instances highlight the variety and originality of non-traditional
trademarks. The sounds associated with their respective brands—the MGM lion's roar, the
Intel chime, and the Harley-Davidson engine sound—are all considered trademarks.
Similarly, non-traditional trademarks that have transcended typical visual representations
include the aroma of Play-Doh, the form of the Coca-Cola bottle, and the colour Tiffany blue.

CHALLENGES AND LEGAL CONSIDERATIONS

Unconventional trademarks present special difficulties for registration, enforcement, and

protection even with their potential advantages. Establishing uniqueness and non-
functionality is one of the main obstacles, especially for sensory markings like tastes and
smells. Additionally, inconsistent legal interpretation and decision-making may result from
the absence of uniform standards for determining the registrability of nontraditional
trademarks. Furthermore, challenges in detecting and establishing infringement, particularly
in situations requiring subjective sensory impressions, may make it more difficult to enforce
rights in atypical trademarks.

CHALLENGES IN REGISTERING UNCONVENTIONAL MARKS IN

INDIA

There are many obstacles involved with registering non-traditional trademarks in India, the
main one being the need for graphical representation. A trademark is specifically defined as
"a mark capable of being represented graphically and capable of distinguishing the goods or
services of one person from those of others" in Section 2(zb) of the Trademarks Act, 1999.
According to this definition, a trademark must be distinctive and easily recognised, and it
must contain a visual or graphic feature that may be duplicated in tangible or digital forms.

1. Graphical representation
It is true that graphical representation of Sound Marks—which are a sequence of
musical notes, jingles, or unique sound patterns—can be difficult. It's important to
remember that they might be represented by writing down the musical notes or giving
a thorough explanation of the sound. Because sound markings may be represented
 graphically, their registration process is comparatively easier in India than those of
other non-traditional trademarks.

Even though colour markings are visually identifiable, reproducing exact colours or
combinations in graphical form is challenging since colour perception is subjective.
Three-dimensional shape markings, best represented graphically by classic designs
such as the Coca-Cola bottle, are difficult to accurately portray in two dimensions due
to their fine features. Furthermore, because taste and smell marks are non-visual and
because these sensory experiences are subjective, complicated, and ever-changing, it
might be difficult to represent them graphically. Animated logos present a hurdle in
that motion marks, with their dynamic movements, might lose their identity when
translated into static visuals. Though distinctive, marks determined by exact location
on goods or packaging have difficulty finding exact graphical representations.
Moreover, three-dimensional and sensory experiences such as taste, texture, and
holographic marks pose a challenge to traditional graphic representation techniques.

2. Distinctiveness
To make matters more complicated, the criteria of distinctiveness is added. Because
of their nature, unconventional marks might not always display this uniqueness. As
was previously said, a lot of unusual marks are connected to human sensory
impressions and experiences. People may find it difficult to remember or may readily
mistake such marks for others from various sources due to the imperfection of human
memory. This emphasises how important it is to show that you have achieved
individuality through widespread use and market recognition. The combination of
these variables poses significant challenges for the registration of non-traditional
trademarks in India.
India is, nevertheless, gradually adjusting to the changing domain of non-traditional
trademarks. The significance of these marks in modern branding has been
acknowledged by the courts and the Intellectual Property Office. Prominent instances
have established a standard for the registration of non-traditional marks, highlighting
the necessity of interpretive flexibility.

For example, the unique sound of the engine on a Harley-Davidson motorbike was
 identified as a sound mark. The Kit-Kat chocolate bar's 3D shape was also registered
as a shape mark.

LEGAL LANDSCAPE AND RECOGNITION

Unconventional trademarks are not always recognised by the law; in fact, some nations are
more accepting of them than others. For instance, the Lanham Act in the US permits the
registration of non-traditional marks as long as they satisfy specific requirements related to
usefulness and distinctiveness. In a similar vein, non-traditional trademarks may be registered
with the European Union Intellectual Property Office (EUIPO), albeit there may be additional
requirements than for traditional marks. However, the acceptance and defence of non-
traditional trademarks are still in their infancy in other countries, such China and India.

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.

CONCLUSION
In the ever-changing field of intellectual property law, unconventional trademarks provide
companies with fresh opportunities for protecting and differentiating their brands.
Unconventional trademarks are becoming more and more important in creating unique brand
identities as consumer preferences and technology advance. It is imperative that the legal
framework pertaining to unusual trademarks undergoes further development to successfully
tackle the distinct obstacles they pose. This will guarantee that enterprises may efficiently
utilise these inventive branding instruments while maintaining the protection of their
intellectual property rights. In the end, innovation, competition, and consumer choice in the
global marketplace are greatly enhanced by the identification and defence of non-traditional
trademarks.