A trademark is a type of intellectual property which was traditionally used to register the name of the business and the logo of the business. A trademark is a mark which helps to distinguish the products of a business from those of another. The main aim to register a trademark is to protect the unique identity of the business, this helps to protect the business from other businesses using their hard-earned goodwill and not allow other businesses to use their identity to earn profits. Conventional trademarks included only the name of the business and the logo, in recent times other forms of trademarks are being registered. As time changes there are newer technologies, newer ways of doing business and more creative ideas born to protect the businesses.
Essentials of a trademark
According to the Trademark act, 1999 for registering a trademark the mark must be capable of graphical representation and be able to distinguish the goods and services of one person from those of others. That means any mark which can trace itself back to the goods and services for which it is used can be registered as a valid trademark.
The essential factors for a trademark thus include-
- That the mark should be distinctive.
- Thus able to differentiate between the goods and services of one business and of that another.
- The mark should be graphically represented meaning it should be possible to put it down on paper.
Types of trademarks registered other than business and logo
Marks which fall out of the ‘conventional category of trademarks’ are difficult to register because of their unusual nature. Despite the challenging nature of these trademarks many businesses have managed to register them. Some of the unconventional types of trademarks include-
In India The Taj Mahal Hotel Palace, Mumbai is the first building to be trademarked in India, it got its trademark on June 19, 2017, with Indian trademark application numbers 3386350 and 3386351. It marked a major development in Trademark laws. A building can only be registered as a trademark when –
- It’s not just a landmark but is engaged with respect to any category of goods and services which can be registered under any class of Trademark.
- Such buildings must be recognised by people with respect to such goods or services. For eg. The Taj Hotel Palace Building is a well-known historical building which is engaged in the services of a hotel and is undoubtedly known by the people.
Other buildings which are registered as a trademark are Empire State Building, Solomon R. Guggenheim Museum, The New York stock exchange etc.
- Signature poses
Registering a signature pose has become a trend lately. Many celebrities and sports players have registered their signature poses as a trademark. Celebrities are themselves a brand and registering their signature poses can add up value to it.
One such famous example of a registered pose is “The lightening pose” by Uzair bolt. It’s a famous pose that Usain bolt displays every time he wins a race. This pose is now a registered trademark and is a key part of his sportswear brand.
- Colour marks
In India under the trademark act “combination of colours” can be a trademark. A combination of colours falls under the conventional category of a trademark in simple words the definition of a trademark includes the words “combination of colours” as a valid trademark. A combination of colours can be registered as valid trademarks if they acquire a distinctive feature when used together which can be recognised by the public, Getting a single colour trademark is a tricky task and a complex one but in many cases, applicants have managed to register a single colour as a trademark.
In the U.S Qualitex Co. Jacobson Products Inc got a particular shade of green trademarked, which was used by the applicant in his business . In the U.K Cadbury acquired a trademark for the classic purple colour it uses to wrap its chocolates (Pantone 2685C). In India, Christian Louboutin SAS obtained a trademark for their red-souled designer shoes. It is still unclear if single colours can be trademarked in India. In the above case, the manner of usage was also an additional factor in the applicant’s contention .However, after the appeal was made in the above case the colour mark was rejected by the Delhi High court.
- Sounds marks
Sounds marks are not new in the field of business marketing. Many businesses use unique sounds which eventually get associated with their brand or their product. Like the clicking sound of Nokia or the Oneplus mobile ringtone. As the fact remains to register a trademark, even a sound as a trademark, distinctiveness is a very important factor, it can be an acquired distinctiveness in the case of sound marks.
The first sound mark in India was registered by Yahoo in the year 2008. Under the Trademark Rules, 2017 Section 26 lays down the manner of registering a sound mark. It lays down that sound marks should be in MP3 format, not more than thirty seconds long and should be graphically represented through music notation.
- Shape marks and 3d marks
A shape mark can be both registered as a design or a trademark. The design act only protects the aesthetic value and the trademark establishes the design origin of the business. The shape marks can include any kind of unique shape of a product or even a 3D shape, which can be graphically represented. A shape mark to get registered has to be Unique and not derived from the actual product itself eg. packing mango juice in a mango shape container, here the shape of the container cannot be trademarked.
Famous brands which have registered the shape of their products include “Toblerone chocolate”, and the unique shape of the chocolate is registered as a trademark. The shape of the Cola-Cola bottle is another registered famous shape mark.
- Motion marks
A motion mark is a moving mark or a moving logo of a company. A moving or interactive logo captures the attention of the customer and is attractive. A human brain registers a moving picture quicker than an image, thus many brands have registered their logo as a set of pictures. However, in India, a moving image cannot be registered as a trademark but it can be registered as a series of images. Thus a motion mark is registered as a device mark but in reality, to the customers, the logo is a moving mark.
The famous “connecting hands” Nokia logo was registered as a device mark. Since it was registered as a device mark, it did not get recognised as a motion mark.
However, in recent times India recognises motion marks as ‘Movement trademarks’ one such example is Toshiba (application no. 4093005), which is registered as a motion mark in the trademark registry. The mark is represented as a series of images in the application.
- Smell marks and taste marks
As we have all seen some products have a certain smell associated with them, and that smell is registered in our brain in the association of that product. This category of trademarks is less known in India yet but some brands have successfully Registered smell marks as well as taste marks.
As earlier discussed the main criteria to register a trademark remains graphical representation along with distinctiveness, so how do businesses represent smell on paper? The written description for the same has to be very accurate and in a way that will create a clear distinction.
With the development in technology and the increasing awareness of brand image, businesses have come up with innovative strategies to make their business stand out. The main object of intellectual property laws is to protect the creations of the human brain. Trademark is a part of intellectual property laws which helps businesses protect their unique indemnity. Businesses today not only create their brand image with the help of their logo and their name but have successfully found out and established other forms of brand image. These other forms include their product smell or taste or shape, they have also managed to register a sound associated with their brand or a unique moving logo for their brand.
Author(s) Name: Tashvita Yardi (Savitribai Phule Pune University)
 The Trademark Act, 1999, s(2)(1)(zb)
 Lalatendu Mishra, ‘In Mumbai, Taj Palace gets a trademark’ (The Hindu, 24 June 2017) <https://www.thehindu.com/news/national/in-mumbai-taj-palace-gets-a-trademark/article19141829.ece> accessed 30 July 2022
 S.S. Rana & Co. Advocates, ‘Building trademarks and the right to click pictures’ (Mondaq, 11 September 2017) <https://www.mondaq.com/india/trademark/627678/building-trademarks-and-the-right-to-click-pictures> accessed 30 July 2022
 Jan Buza, ‘Poses and gestures that have become registered trademarks’ ( Trama, January 2021) <https://tramatm.com/blog/category/youtube/poses-and-gestures-that-have-become-registered-trademarks> accessed 30 July 2022
Qualitex Co. v. Jacobson Products Co., Inc. 1995, 514 U.S. 159
 Emily Hawkins, ‘Uk court Allows Cadbury To Trademark Iconic Purple Colour’ (arbiters, July 2022) <https://arbiterz.com/uk-court-allows-cadbury-to-trademark-iconic-purple-colour/> accessed 22 July 2022
 Christian Louboutin SAS v abubaker and Ors 2019, RFA (OS)(COMM) 13/2018 & CM 29064/2018
 Prashant Shivadass, ‘[The viewpoint] Sound Marks in India: Exploring non-conventional branding’ ( Bar and bench, 30 November 2021) <https://www.barandbench.com/amp/story/view-point/sound-marks-in-india-exploring-non-conventional-branding> accessed 30 July 2022
 Trademark rules, 2017, s (26)
 Vrinda Sehgal, ‘Shape Marks & Technical Necessity’ ( Lexology, 15 November 2021) <https://www.lexology.com/library/detail.aspx?g=2483349a-1dea-4919-960e-38c49e047f98> accessed 30 July 2022