Understanding the legal landscape of non-conventional trademarks in India

Abstract

Among contemporary intellectual property debates, non-conventional trademarks (such as sounds, smells, tastes, shapes, and holograms) present unique challenges. They serve the primary function of trademarks to distinguish the goods or services of one proprietor from those of another. For example, customers often associate the distinct shape of the Coca-Cola bottle with the beverage itself, the peculiar blue colour of Tiffany with the company, the very popular “Tudum” sound of Netflix with its brand identity. Such trademarks help the companies to enhance their brand recognition through unique sensory memory. The aim of this paper is to critically study the legal recognition, registration, and protection of non-conventional trademarks under Indian law, emphasizing both legal and practical difficulties by analyzing various examples of these marks. Extensive case law has been analyzed to elaborate the scope of infringement of these marks and the defenses available against such claims. Further, this paper highlights that a thorough understanding of the important role of non-conventional trademarks is essential for shaping today’s intellectual property landscape, offering valuable insights into both the challenges and opportunities they present for businesses. The absence of objective standards and the requirement for visual representation often complicate establishing distinctiveness, proving infringement, or demonstrating consumer association.