EXPANDING SCOPE OF MARKS CAPABLE OF REGISTRATION UNDER TRADE MARK LAWS
Introduction
"There is nothing in the intellect that was not first in the senses."
Aristotle, On the Soul
What immediately comes to your mind when you hear the sound of chimes, a child’s giggle or a lion roar? Smell fresh cut grass or plumeria blossoms? Or see the colour pink? A non-traditional trademark is relatively new under the IP law and therefore does not come under the pre existing conventional categories of marks like letters, numerals, words, logos, pictures etc. The term therefore consist of marks such as colour, sound, smell, shape, moving image, hologram, tactile, taste, and celebrity mark. The concept of non traditional mark is an innovative concept as it produces entirely new family of marks discrete and distinct from the traditional trademarks. Non-traditional trademark can either be visible signs such as colours, shapes, moving images or holograms or non visible such as sound, scents or taste etc.
Therefore, the scope and function of modern trademark have considerably expanded, as civilisation continues to evolve into a modern technological era.Trademark has to include an indication of origin and a quality guarantee and have to function as a marketing and advertising device also. Consumers readily recognize traditional trademarks such as brand names and logos as identifying the source and quality of goods and services. However, consumers may not readily acknowledge that a colour, sound, or scent functions as a trademark. Further, even where consumer recognition is not an issue, consumers rarely have the opportunity to make a direct comparison between similar non-traditional marks and, as a result, face increased difficulty identifying and distinguishing their desired product or service. As such, granting trademark protection in non-traditional marks may incite rather than mitigate consumer confusion. There are fundamentally three tests, which every mark has to qualify in order to be registered as trademark. The tests of functionality, graphical representability and distinctiveness. According to section 2(1)(zb) of Indian Trademark Act 1999, any mark which is capable of distinguishing goods and services of one undertaking from another, and capable of represented graphically is capable of registration. Thus, the trademark definition is inclusive one and non-traditional trademark can very well come under it if they fulfil the criteria given. However, there are also several problems with the registration of non-traditional mark like the problem of distinctiveness itself. Though, certain non traditional trademarks like colour and shape can be identified by consumers easily, for others like smell and taste marks, perception may vary which may create confusion in the minds of consumers. The second problem is graphical representability of the mark to be registered especially in case of smell and sound mark. This paper concentrates on these aspects in the light of legal requirements in various jurisdictions and with the help of decided cases...... by Sabaha Khan
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