Unconventional trademarks: An Indian perspective

Co-authored by Shilpi Jain

Protection and enforcement of unconventional trademarks such as colors, shapes, sounds, motions, smells, and tastes has always been a subject of interesting debate under Indian law. This is due to the fact that they add tremendous brand value to any particular business because of the enhanced power of recollection they effectuate.

The Trade Marks Act, 1999 (“Act”) expressly recognizes shape of goods, combination of colors and, when read with the corresponding new Trade Marks Rules, 2017 (“Rules”), sound as an acceptable trademark. Although taste, smell, motion etc. have not yet been expressly recognized as trademarks, if they are found to test well on the touchstone of distinctiveness and capability of being represented graphically, they would deserve the trademark status in India. In India, it may take many precedents and legislative amendments before all aspects of unconventional trademarks are comprehensively codified as a benchmark for times to come.

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