INTRODUCTION:
Trademark law is a type of intellectual property law that protects names, logos, and symbols by granting the owner distinctive rights to use them commercially. The main purpose of this form of intellectual property law is to prevent confusion, protect the interests of consumers and manufacturers from uncertified reproduction of their products. The Trade Marks Act 1999[1] Consists of conventional marks such as names, logos, signs, symbols, images, and captions. But with the growth in this area of law, manufacturers are pivoting to creativity to gain a competitive edge.
Non-traditional trademarks encompass various forms of marks that fall outside conventional categories. Non-traditional trademarks consist of shape, colour, texture, sound, and taste. Conventional trademarks are visually represented, but unconventional trademarks have a lasting impact on consumers’ minds, enabling them to identify and distinguish the product. This blog covers the types of unconventional trademarks, their position, and case analysis in India, as well as suggestions for the legal registration of unconventional trademarks.[2]
DIVERSE STYLES OF UNCONVENTIONAL TRADEMARK:
- Trademark based on smell:
The sense of smell is one of the most influential senses of mankind. The smell of products is difficult to register as a trademark because of its inability to be represented graphically and the difficulty in showing its distinctiveness from the products. In many cases, the illustration of smell is done by writing down the chemical formula. The fragrance used in the hot towels by Singapore Airlines is one of the examples of smell trademarks.[3]
- Trademark based on taste:
Registration of taste as a trademark is a contentious topic, and its illustration is the most challenging task as opposed to other unconventional trademarks. A written explanation of the taste is provided for the illustration of the taste mark. The taste mark must be different from the innate function performed by the product.
- Trademark based on motion:
In India, many large movie companies are becoming prevalent, resulting in the registration of motion marks, which is emerging as a significant trend compared to other non-conventional marks. Moving pictures, videos, etc, are some of the motion marks which has been accepted by some countries for registration.
- Trademark based on touch:
The touch mark should convey a meaning that indicates registration and should not merely be an ornamental packaging design. Touch mark is the lowest claimed non-conventional trademark because it is not commonly used like other trademarks. The leather-like material on the covering of grappa is an example of touch as a trademark.
- Trademark based on colour:
The colour trademark gets registration for the combination of colours. The registration of a single colour still leads to ambiguity, as it lacks the underlying ability to be distinct, and there are many shades of a single colour, which may confuse consumers. The number of colours is very limited, which is another problem related to the registration of a single colour.
- Trademark based on shape:
A shape trademark protects the distinct shape or packaging of a product. The Trade Marks Act 1999[4] Allows the registration of a shape as a trademark, provided that it meets the specific criteria to be registered as a trademark – distinctiveness and graphical representation. But shape marks do not meet these two main essentials. Despite all this, the shape of the Coca-Cola bottle is a registered trademark because it met the criteria of registration over time. With the long-time usage of that bottle, consumers linked it with Coca-Cola, which made it different from other bottles in the market.
- Trademark based on sound:
A sound mark is one of the unconventional trademarks, and its registration is easier compared to other unconventional trademarks because it can be represented graphically through notations. A distinctive mark helps consumers easily recognize the product, and this mark leaves a lasting impression on the consumer’s mind. Nokia’s tune is one such example because its sound was distinctive and served as the brand identifier, which is the requirement of a sound trademark.[5]
STATUS OF UNCONVENTIONAL TRADEMARKS IN INDIA:
The term “trademark” is defined in the Trademarks Act 1999[6]. According to that definition, there are two main essentials for trademark registration: the mark must have the capability to distinguish the goods or services, and must be able to be represented graphically. Due to the necessity of distinctiveness and the need for graphical representation, unconventional trademarks face obstacles in the registration process because both of these components are absent in almost all unconventional trademarks, except for sounds, which can be represented graphically through notations.
The Trade Marks Act 1999[7] Remains silent on unconventional trademarks and includes these marks through judicial pronouncements. But the Trade Mark Rules 2017[8] Introduces a provision for the recognition of unconventional trademarks and enables the sound mark to be registered as a trademark. In India, it has been observed that colour and shape marks are easier to get registered because they are visual in nature and can be represented graphically, and are identifiable.[9].
CASE ANALYSIS OF UNCONVENTIONAL TRADEMARKS IN INDIA:
- Sound trademarks: Some companies got their sound trademarks registered, for example, in 2008, Yahoo’s voice became the first registered sound trademark in India. The National Stock Exchange theme song is also a registered sound trademark. ICICI Bank’s corporate jingle, Nokia’s guitar-based musical phrase, and Netflix’s “Ta–Dum” sound are some of the registered sound trademarks. The primary reason for the registration of these marks was their ability to be represented graphically through notations or words.
- Shape trademarks: In many cases, Indian courts have affirmed the rule of using shape as a trademark. In Lilly ICOS LLC and Anr. v. Maiden Pharmaceuticals Ltd.[10]The defendant had wrongfully imitated the unique almond shape of the plaintiff’s product, and the court ruled in favour of the plaintiff by issuing an injunction against the defendant, observing that the defendant had adopted the shape with wrongful intent.
- Colour trademarks: In India, the judgments of courts on the registration of colour trademarks have not been consistent. In Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd[11], the court restricted the defendant from adopting the plaintiff’s red and white colour scheme for its product packaging, while in the case of Cipla Ltd. v. MKI Pharmaceuticals[12]The court stated that the colours should not be dominated, and imitating the colour of another product does not establish passing off.[13]
RECOMMENDATION FOR REFORM:
While unconventional trademarks can overhaul brand identity and help a business grow in the modern world, the legal system of India does not provide them full protection. To foster innovation in the market and protect businesses and consumers in the competitive market, there is a need for the evolution of the law.
There is a need to elucidate two main components for the registration of unconventional trademarks – criteria for distinctiveness and modernization of graphical representation. Unconventional trademarks must be given statutory recognition rather than just judicial recognition, and this would encourage their registration and result in a more pioneering trademark ecosystem in India.[14]
CONCLUSION:
Unconventional trademarks represent the future of brands and innovation in businesses. But the Indian legal system lacks in providing them proper protection, due to which they face hurdles in the registration process. Laws must be strengthened in this direction to safeguard businesses and make the market more progressive and competitive.
Author(s) Name: Disha Singh (Government Law College, Indore)
References:
[1] Trade Marks Act 1999
[2] Swati Mehra, ‘Exploring the Realm of Non-Traditional Trademarks: An Indian Perspective’ (lawctopus, 11 January 2025) <https://www.lawctopus.com/academike/exploring-the-realm-of-non-traditional-trademarks-an-indian-perspective/> accessed 08 September 2025
[3] Amit Kumar Dahiya, ‘The Rise of Non-Traditional Trademarks: Exploring the Protection of Sounds, Scents, and Colours’ (Legaleraonline, 21 August 2024) <https://www.legaleraonline.com/intellectual-property/the-rise-of-non-traditional-trademarks-exploring-the-protection-of-sounds-scents-and-colors-930609>accessed 08 September 2025
[4] Trade Marks Act 1999
[5] Rachna R. Kurup and Nimita Aksa Pradeep, ‘Non-Conventional Trademarks In India: The What, The Why and The How’ (2020) 1(1) E-Journal of Academic Innovation and Research in Intellectual Property Assets <https://cnlu.ac.in/storage/2025/04/9-Rachna-R-Kurup-and-Nimita-Aksa-Pradeep-1.pdf> accessed 08 September 2025
[6] Trade Marks Act 1999
[7] ibid
[8] Trade Mark Rules 2017
[9] Vrinda Chaturvedi, ‘Charting the Unconventional: Recognition and Challenges of Unconventional Trademarks in the Indian IPR Regime’ (NLIU Cell for Studies in Intellectual Property Rights, 02 April 2024) <https://csipr.nliu.ac.in/miscellaneous/charting-the-unconventional-recognition-and-challenges-of-unconventional-trademarks-in-the-indian-ipr-regime/> accessed 08 September 2025
[10] Lilly ICOS LLC and Anr. v. Maiden Pharmaceuticals Ltd (2009) 39 PTC 666 (Del HC)
[11] Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd (2003) DLT 51
[12] Cipla Ltd. v. MKI Pharmaceuticals (2007) 36 PTC 166 Del
[13] Chaturvedi (n 9)
[14] Apoorva Sri A R and Kavyashree R, ‘Unconventional Trademarks In India: Exploring The Legal Challenges Of Position, Sound, Smell And Taste Marks’ (2024) 5(2) International Journal of Advanced Legal Research <https://ijalr.in/wp-content/uploads/2024/11/UNCONVENTIONAL-TRADEMARKS-IN-INDIA-EXPLORING-THE-LEGAL-CHALLENGES-OF-POSITION-SOUND-SMELL-AND-TASTE-MARKS.pdfhttps://ijalr.in/wp-content/uploads/2024/11/UNCONVENTIONAL-TRADEMARKS-IN-INDIA-EXPLORING-THE-LEGAL-CHALLENGES-OF-POSITION-SOUND-SMELL-AND-TASTE-MARKS.pdf> accessed 08 September 2025
