Opinion

Mera-vala pink

B Desikan | Updated on March 09, 2018

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Colours, sounds, smells, gestures and moves… you can trademark them all



Intellectual property rights (IPR) is widening its prospects in India with the legal system starting to recognise unconventional trademarks. In 2008, the trademark registry started acknowledging sounds as well when it registered Yahoo!’s “yodel” sound. All this became possible after India became a signatory of TRIPS in 1994.

Article 15 of the agreement on trade related aspects of intellectual property rights (TRIPS) states: “Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.” So, what are some of these?

Sound marks

Here, sound is used to perform the trademark function of uniquely identifying the commercial origin of a product or service. The representation of the sound to be registered must be clear, precise, self-contained, easily accessible, intelligible, durable and objective. It is sufficient that the sign is easily intelligible.

Further, the application must clearly state that they are meant for sound marks. Hence, Nokia tone, the Airtel tune, the melodious musical introduction of AVM productions, Doordarshan’s lively signature tune, can all be registered in India.

Sound marks are shown in the form of graphical representation, i.e. musical notes. A graphic representation of this has to be given in the application. Sound marks not only enhance the credibility of the products, they are significantly important for those who are visually impaired or unlettered, says David Vaver, a professor of Intellectural Property.

Smell marks

Smell marks are another unconventional trademark that are getting popular in India. They are also called olfactory or scent marks.

Manufacturers introduce smells as marketing strategy to make the the products more pleasing or attractive. These goods could include cleaning preparations, cosmetics and fabric softeners.

Nowadays, even less obvious goods are manufactured with particular scents to add to the product’s appeal, such as, for example, magazines, pens, paper and erasers. Hence on enabling the smell marks, the smell of freshly cut grass emanating from tennis balls, or tires with a fragrance reminiscent of roses can be registered.

Even these olfactory marks should be in the form of graphic representations.

The European Court has pronounced that a smell trademark does not satisfy the requirements of graphic representation if it is presented in the form of a chemical formula, a description in written words, a deposit of the odour sample or a combination of those elements. However, in the Indian context, such marks should be represented only in the graphic form. The biggest challenge, therefore, is for traders to meet these requirements.

Legal assistance

The global market is moving towards an absolute capitalist economy. Given this emerging economic trend, the recognition of non-conventional marks by a trademark registry is a sign of prosperity. It marks a progressive aspect of consumer acknowledgement and brand strategies.

We can now expect the entry of such unusual marks as taste, moving grams, gestures or holograms. Of course, the government and the authorities concerned need to take initiatives to make people aware of such rights and marks.

Awareness of these laws will not only bring protection to business houses but also revenue to the government, and healthy competition in the markets.

(The author is a trademark law consultant.)

Published on January 23, 2014

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