Non-Conventional Trademark

An unconventional trademark is a type of trademark which does not fall in the category of conventional trademark or traditional trademark. An unconventional trademark is mainly in the form of sound marks, smell marks, shape marks and color marks. An unconventional trademark must possess the communicative ability of being able to differentiate goods and services from one person from that of another. The mark should have the potential to be distinctive; it must indicate source and thereby distinguish the goods.

In recent years, trade mark registries and courts have grappled with trade mark applications for silhouettes, shapes, scents, textures and tastes, as well as short cartoons, single colors, body movements and Tarzan's yell. This invasion of the unconventional is due to the open ended definition of a trade mark. On the one hand, trade mark law has embraced a definition that emphasizes the functional, rather than the ontological, status of a sign. Anything which does the communicative work of a trade mark, by distinguishing goods on the basis of trade origin, can be registered as one. On the other hand registration systems have historically developed around paradigmatic subject matter: a conventional or traditional trade mark that is visual and consists of words and/or figurative devices. The need to reconcile these conflicting imperatives - the system is open to all categories of signs and it's apparently 'business as usual,' yet the registration system was designed with only words and figurative devices in mind - requires a careful reconsideration of certain basic assumptions in this area. The Indian Trade Mark Registry's Draft Manual of Trade Mark Practice and Procedure provides the contextual framework for this reappraisal and this article responds to the various approaches it has adopted to accommodate such signs.[1]

One of the most common arguments against non-conventional trademark is that they are leading to an undesirable restriction in the free intellectual property resources. Therefore it becomes imperative to first ask whether they should be registered. According to the dynamic opinion of the public assuming that a particular non-conventional trademark is distinctive and is not functional, a non-conventional mark like sound, smell or shape should give trademark protection.

The non-conventional trademark cater a segment of society which has, in the opinion of the researcher, been ignored in the earlier trademark regime. I refer...