What is trademark? Ask any person or conduct any kind of search the standard definition that you will find is “trademark is the name, logo, sign, design, or expression which identifies products or services of a particular source from those of others”. In actual practice this definition is incomplete. In year 2017 the amendments were made in trademark rules 1999. In the new rules the recognition is given to the concept of unconventional trademarks. With this blog we will understand everything about the non-traditional class of trademark. What are unconventional trademarks?
As its name rightly suggests the unconventional trademark is the type of trademark that does not belongs to traditional class of word marks, device marks, numeral etc. The unconventional marks include the form of sound marks, smell marks, shape marks or color marks. Just like the traditional marks the unconventional mark must possess the communicative ability of being able to differentiate the goods and services of one person from that of another. This means that mark shall possess the distinctive features to indicate source and thereby distinguish the goods or services from others. There are mainly three unconventional trademarks. Sound: Similarly like the traditional marks the unique sounds capable uniquely identify the commercial origin of products/ services is definitely eligible to be protected. The sound registration is granted to the multiple cases like four-note bell sound of Britannia Industries, default ring-tone of a Nokia mobile phone, the yodel of yahoo, thunderous sound of Harley-Davidson etc. For registering the Sound marks it is important to submit a sound clip along with the musical notations. As far as India is concerned the first sound registration was granted by the trademark registry to the Yahoo! Yodle. Also, the ICICI holds the registration for the musical notes that form its jingle. Smell: It is very hard to obtain the registration of smell thus the concept of its registration is not very popular here. It is hard to obtain this registration because the smell cannot be represented graphically and is defined subjectively. Generally, the representation of the smell is verbal and the verbal representation of the smell is not sufficient to distinguish one smell from the other. Color: Most of the disputes take place in the registration of color only. Due to limitation of number of basic colors that is just 7 it is not possible to trademark registration for single color. However, you can protect the any shade of the seven color thereof. While single color registration is difficult the combination of colors can be protected more easily. In order to obtain the registration for the color, it should be proved by the applicant that the color used by them are unique and are capable of distinguishing goods and services from similar goods and services. Also, the registration can be obtained if a color combination used is not inherently distinctive, but it has acquired distinctiveness due to the bona fide use over a long period of time. The burden of proof is on the applicant to show that the color has acquired distinctiveness or secondary meaning. Similar to the rights with registration of traditional marks the unconventional trademark also brings the bundle of rights. Also, the owner must check what is trademark infringement in India and make sure to exercise their rights.
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7/10/2023 05:34:38 am
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