A broad overview of non-conventional trademarks.

1. Non-Conventional
Trademarks
Aadya Misra

2. What is a trademark?

3. Traditional Trademarks
Letters
Logos
Symbols

5. Trademarks Act, 1999 -----> Section 2 (zb)

A mark that is capable of being represented
graphically

It distinguishes the goods and services of one
person from those of another

It may include the shape of the goods,
packaging, or a combination of colours

6. What is a Non-Conventional
Trademark? (NCTs)

These are trademarks that do not fall under the
traditional categories

Examples include: colours, smells, sounds

The definition provided in the Trademarks Act,
1999 is wide enough to cover NCTs

7. It's important to remember that...
... a non-conventional trademark is still a
trademark, as it fulfills the essential features of
a trademark.
The reason they are “non-conventional” is often
because of the difficulty associated with
registering them

8. Sound Trademarks

Sound marks can be registered in India, if they
are capable of being represented graphically
i.e, in the form of musical notes, satisfying the
requirement of graphical representation under
the Act.

The famous “Yahoo” yodel was the first sound
mark granted in India in 2008.

9. The Trademark Guidelines prescribe that a
trademark may consist of a sound and be
represented by a series of musical notes with or
without words. The representation must be
clear, precise, selfcontained, easily
accessible,intelligible, durable and objective.
Factual distinctiveness

10. Colour Trademarks
USA:
A single color can indeed be a brand, so long
as the public strongly associates the color and
the specific product and that the color is in no
way functional.

11. India:

The Trademarks Registry has reportedly
accepted no single colour marks for registration

Given the limited number of colours, there is
concern that by allowing registrations of colours
per se, sooner or later the available stock of
colours will become depleted and thus anti-
competitive. Therefore, there are stringent
criteria for accepting single colour marks for
registration

12. 
According to the draft Trademarks Manual
guidelines, in exceptional circumstances a
single colour can be considered for registration
if the colour is capable of denoting the origin of
a product or service and has acquired a high
level of distinctiveness

In Colgate Palmolive Company v. Anchor
Health and Beauty Care Pvt Ltd, the court
observed that a colour combination is a
‘trademark’ within the definition of the act, as
there is no exclusion in the definition and even a
single colour is entitled to protection under the
law of passing off.

13. 
In Cipla v MK Pharma, the Court held that a
single colour or a colour combination is not a
trademark and is incapable of protection under
the common law of passing off

Thus at the present, the Indian stance on colour
trademarks is divergent and ambiguous.