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Issn 2455-4782 Hear Me, Touch Me, Taste Me, Smell Me ISSN 2455-4782 HEAR ME, TOUCH ME, TASTE ME, SMELL ME: CONVENTIONALIZING NON-CONVENTIONAL TRADE MARKS IN INDIA Tanisha Agarwal1 & Vanshaj Mehta2 ABSTRACT A trademark may comprise of any symbol capable of being represented graphically, predominantly words, designs, names, numerals, letters, the shape of goods or of their packaging, on condition that that such signs are capable of distinguishing the goods or services of one enterprise from those of other enterprises. A trademarked word or name or symbol etc. is indicated by a suffixed ™ symbol in the yet-to-be approved phase and by ® post registration of the trademark. Conventionally, trademarks have been visually and graphically identifiable. Non-Conventional Trademarks such as – Smell Mark, Sound Mark, Taste Mark, Touch Mark, Motion Mark and Hologram Mark have emerged as the most contemporary issue of the modern trademark regime. Granting of such trademarks is gradually gaining recognition in various countries. India’s Trademark Regime still emphasizes on the need of a trademark being capable of graphical representation. However, conventions and treaties in the past have been held where graphical representation of a trademark has not been considered a necessity in granting registration to it. This paper shall broadly discuss about the need of such marks in the modern era. There have been few precedents around the world in which the judiciary has granted registration for non- conventional trademarks. The present paper will not only highlight the developments in the trademark regime through various treaties around the world as well as legislation reforms in India, but also draw a comparison between India and the United States’ take on this moot issue. Contrary to the belief that such marks would result in an anti-competitive trade regime, granting registration of these non-conventional marks would eventually be beneficial and would add to a healthy competitive market economy. 1 5th Year BA LLB Student, Institute of Law, Nirma University 2 5th Year BA. LLB Student, Institute of Law, Nirma University 1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 5 ISSN 2455-4782 INTRODUCTION Section 2, Article 15, Clause 1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights3(TRIPS) defines trademark as, “Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.” Such signs, precisely words comprising personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be qualified for registration as trademarks. “Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.”4 What is necessary under this article is that any sign, or any combination of signs, must be capable of distinguishing the goods or services of one undertaking from those of other undertaking.5The problem faced by non-traditional trademark applications is that none of these - Smell Mark, Taste Mark, Motion Mark, Touch Mark, Hologram Mark, etc. - can be visually perceived. Trademarks Act, 1999 defines a ''Trademark'' as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.”6Non-traditional trademarks are relatively new on the Intellectual Property regime. Any mark that does not come under the traditional categories of trademarks such as letters, words, logos, numerals, pictures, and symbols may be termed as non- traditional trademark. Non-conventional trademarks therefore consist of marks originating from shapes, sounds, smells, tastes and textures.7 3 Agreement on Trade Related Intellectual Property Rights, 01/01/1995 [hereinafter TRIPS Agreement]. 4 Ibid. 5 M.B. Rao &Manjula Guru, Understanding TRIPS: Managing Knowledge In Developing Countries, 106 (1st ed., 2003). 6 S. 2(zb), Trade Marks Act, 1999. 7 Non-Conventional Trademarks, IPPRO, available at http://www.ipproinc.com/admin/files/upload/8ce71cd2d0e3086fd66415325f958236.pdf, last seen on 10/11/2016. 2 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 5 ISSN 2455-4782 SMELL MARK Smell is said to be one of the most powerful types of human reminiscence, and businesses show increasing interest in pairing pleasing scents with their goods. To obtain registration of a smell mark applicants must be able to graphically represent the product’s scent and must show that it is distinctive from the product itself. But how does one represent a smell in an illustrative way? Writing down the chemical formula for a smell is challenging as it is deemed to signify the substance rather than the smell of that substance. However, some smell mark descriptions have met the distinctiveness test and been successfully registered, such as a Dutch company’s tennis balls with the scent of newly mown grass,8 and United Kingdom registrations for tires with “a floral fragrance/smell reminiscent of roses”9 and darts with “the strong smell of bitter beer.”10 TASTE MARK Some jurisdictions have accepted taste marks for registration.11 In one particular instance, the graphic representation requirement was contented by using a written explanation of the taste and an indication that it concerns a taste mark. In assessing the registrability of this type of sign, principles similar to those concerning odors may apply and it could be argued that taste marks may only be applied to goods and not to service.12One of the obstacles to registering these marks is how to describe a scent or taste. Another difficulty is whether the scent or taste is "functional."13 8 Making a Mark, WIPO, available at http://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_waw_10/wipo_smes_waw_10_ref_theme_03_01.pdf last seen on 10/11/2016. 9 The Registration of Smell Trademarks in Europe: Another EU Harmonisation Challenge, Inter-Lawyer, available at http://www.inter-lawyer.com/lex-e-scripta/articles/trademarks-registration-smell-EU.htm, last seen on 10/11/2016. 10 Smell, Sound and Taste- Getting a Sense of Non-Traditional Marks, WIPO, available at http://www.wipo.int/wipo_magazine/en/2009/01/article_0003.html, last seen on 10/11/2016. 11 For example, in the Benelux Office the following mark has been registered (DE SMAAK VON DROP BX NO. 625971). “The trademark consists of the taste of liquorice applied to goods in class 16 (taste mark)”. 12 Ibid. 13 Thomas A. Gallagher, Nontraditional Trademarks: Taste/Flavor, 105(3), The Trademark Reporter, 805, 806 (2015) available at http://www.inta.org/TMR/Documents/Volume%20105/vol105_No3_a4.pdf, last seen on 10/11/2016. 3 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 5 ISSN 2455-4782 MOTION MARK Moving cinematography, logos, motion pictures, video clips, film clips, documentary clips are also registered as motion marks in few countries. Numbers of motion of marks have been protected under the Federal Trademarks Act (Lanham Act).14 For instance the trademarks of Motion Pictures, 20th Century Fox Movies, Columbia Pictures are widely known motion marks registered in USA. Possibly, in the field of media the occurrence of motion marks is extremely felt and recognized. For instance in case of 20th Century Fox Movies the phrase ''20th Century Fox'' movies appears in two lines in golden color words. The visuals show the phrase while camera moves from right to left bringing the phrase exactly in the middle of the television or theaters screens. In India also the momentum is gaining importance with big movie and media companies looking for motion marks to represent their products and services.15 TOUCH MARK Touch is one among the various sense marks and has its presence and appeal in the business realm, yet it appears as a trademark. These marks are also known as touch marks or texture marks which mainly give the sense to the user with reference to its subsistence and the goods or services it is on behalf of. The touch mark should be distinctive to the users; i.e. it must not be just an eye-catching or ornamental element. It must be further than decoration and packaging of the goods or services that it is demonstrating and must possess the characteristic of a standard trademark. However, touch marks which ignite the touch sense of human beings are not being claimed as frequently as compared to other non-traditional trademark and therefore touch marks remain as less celebrated or less claimed marks in the lot of non-traditional trademarks.16 14 The Lanham (Trademark) Act (Act of July 5, 1946) (United States). 15 Millennium and Generation Next Trademarks: Trends in Branding and Merchandising, E-Science Centralavailable athttp://www.esciencecentral.org/journals/millennium-and-generation-next-trademarks-trends- in-branding-and-merchandising-ipr.1000117.php?aid=26447, last seen on 10/11/2016. 16 Ibid. 4 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 5 ISSN 2455-4782 HOLOGRAM MARK A Hologram Trademark is a non-conventional trademark where a hologram is used to achieve the trademark function of peculiarly identifying the marketable origin of goods and services. The purpose of such holograms is to prevent false replication. Holograms by their very nature possess multiple images or colors that are visible only when viewed from different angles. Hence, holograms are difficult to capture in paper form, since the paper print will be unable to show the movement of images.17 It is, however, interesting to note that the Indian Trade Marks Act does not specifically mention or define unconventional marks such as smell, color, taste and sound marks.
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