International Journal of Mechanical and Production Engineering Research and Development (IJMPERD) ISSN (P): 2249–6890; ISSN (E): 2249–8001 Vol. 10, Issue 3, Jun 2020, 9421–9432 © TJPRC Pvt. Ltd. REGISTRATION OF NON-TRADITIONAL TRADEMARKS IN INDIA AMRITA MISHRA Assistant Professor, Faculty of Legal Studies, Siksha O Anusandhan (Deemed to be University), Bhubaneswar, Odisha, India ABSTRACT In the era of globalization when cross border trade occurs on the international market, trademark has become a key tool to denote the identity of a company. A successful trademark bears its own logo, adds distinct personality to the products and is the essence of competitiveness current trademark law illustrates some innovative innovations concerning the making and presentation of ‘mark’ itself. The modern industry is in the busy process of inventing new items with typical odor special touch and single tone to provide modern consumers with more sensitive consumer goods. Although in all jurisdictions these novel trademarks have not yet reached a high acceptance, the use of such marks in common in contemporary market. Non-traditional trademarks remain a developing practice in the modern market and the case-law on this subject matter evolves. Studies, however, show that there is an increasing number of request of the proprietor to register non-traditional trademarks in the global trade. On the contrary, there is no uniform worldwide standard for examining, registering and enforcing these marks. This research paper captures, against this background, Original the brief history of non-traditional trademarks, the rationale of its protection under the legal systems is prevalent through various case studies, registration by the United States (US), European Union (EU), and India. It also looks at how these modern brands discharge their functions just like trademark. The paper also analyzes the problems Article surrounding the lack of uniformity education when reviewing and registering non-traditional trademarks globally. It ends the recommendations for review harmonization and registration process across different registries. KEYWORDS: European Union, Trademark, Non-traditional, Jurisdiction Received: Jun 06, 2020; Accepted: Jun 26, 2020; Published: Aug 26, 2020; Paper Id.: IJMPERDJUN2020895 INTRODUCTION The past of the trademarks is as old as human memory. It started with the commencement of goods circulation. The roman forgers are thought to be first users with the ID markings on their weapons. In Rome and in Ancient Greek, Potters used ‘potters’ labels to classify the vase builders. The artisans and merchants used to affix ‘output labels’ in guilds in order to differentiate their products from products of inferior quality. This helped them to maintain confidence in the guilds and to take action against inferior quality goods manufacturers for failing to meet the guild standards. A trademark in recent years register and courts have been grappling with applications for Silhouettes, forms, fragrances, textures, tastes, brief animations, single colors, body movements, technical concepts, product label positions and Tarzan’s brand yell. This unconventional invasion is due to the abstract nature of the trademark’s legal definition. Trade, for one things mark law follows an inclusive concept emphasizing the practical, instead of the ontological character of a symbol. Any sigh that it does Trade mark communication by distinguishing goods or services commercial root basis, can be reported as one. Conversely, the trade mark registration systems have developed historically around paradigmatic subject matter: A modern or new, visual trade mark consisting of words, instruments, or a combination of both. The need to reconcile those differences Imperatives- the registration system www.tjprc.org SCOPUS Indexed Journal [email protected] 9422 Amrita Mishra for trademarks is open to all categories of marks and it seems to be ‘ business as usual,’ but the registration systems has been designed with only words and figurative devices in mind-a careful reconsideration is needed of certain fundamental assumptions that underpin this area of intellectual property. Trademark is a type of industrial property that is distinct from other types of intellectual property used to differentiate between a company and services. A standard trademark conventionally involves a name, term, expression, logo, emblem, design image or a combination of these methods. There are also several other ‘non-traditional’ trademarks that have sound marks, odor marks, color marks, shapes and taste marks have gained prominence in recent times.1 In the US, the concept of ‘trademark’ in the Lanham Act includes non-traditional marks by not excluding them. It contains’ any word, name symbol, or device; or any combination thereof that identifies and distinguishes one person’s goods and services from another’s and indicates their source. The Supreme Court has made it clear that the trademark could contain anything that could possess some purpose. On the other hand, section 1(1) of the UK Trademark Act defines trademark as ‘any sign that is capable of being graphically portrayed, capable separating goods and services from those of other undertakings by one undertaking.2 In particular, a trademark that consist of words, patterns, letters, numerals or the form of its products or packaging. So, unlike. The position of the US, in the UK there is a restriction on what might actually be a trademark. The Article 15.1 of the TRIPS Agreement stipulates that can record any sign or combination of signs. As a trademark although it may be appropriate for the label is ‘visually visible’. Under EU law. A sign must be cable of being graphically presented in addition to which it must be clear, precise, self- contained, easily accessible, intelligible, durable, objective, and distinctive and not deprive trade or the public of signs that the directive or regulation implies should be free for all. In India, section 2(1)(zb) of the Indian Trademarks act specifies that any mark that is distinguishable, i.e capable distinguishing between goods and services of another. A trademark can be depicted graphically.3 Registration of a trademark helps to instill consumer confidence and the avoidance of confusion as to the source of products sold under a mark. In most cases, consumers rely on trade-marks. It’s difficult to rapidly and efficiently inspect a commodity to assess its price. The biggest need to use non-traditional trademarks arises because market-savvy firms want to design and advertise their products in such a way that it appeals to the aesthetic sense of the consumer. Even although a non- traditional mark is equally entitled to protection as is a conventional mark.4 DISCUSSIONS History The traditional and traditional trademarks such as plain words, devices, logos and designs have long been used to distinguish goods. Over time, as well as words, logos, color combinations and graphic designs, other elements have come to serve as 1 Kerly D M, Law of Trade Names and Trademarks ( Sweet and Maxwell, London), 2005, p.12. 2 Michaels Amanda, A Practical Guide to Trademark Law (Sweet and Maxwell, London), 2002, p.10. 3 Article 2, EC Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trademarks ; Article 4, EC Council Regulation No. 40/94 of 20 December 1993 on the Community Trade Mark 4 Roth Melissa, Something old, something new, something borrowed, something blue: A new tradition in non-traditional mark registrations, Cardozo Law Review, 27 (2005) 457 Impact Factor (JCC): 8.8746 SCOPUS Indexed Journal NAAS Rating: 3.11 Registration of Non-Traditional Trademarks in India 9423 identifiers of the source of goods/ services, thus serving the function of marks. Such modern marks go beyond conventional nature trademarks, features, scope and economic potential. The revolution in digital and social media has bought about paradigm shift in the branding strategies. The most striking branding strategy of the 21st century is the non-traditional trademarks. The technological Review many businesses have convinced them to experiment with ‘strong branding’ using colour; sound; smell; fragrance of raspberries; touch etc.Shape, colour, stitching pattern design, and sound were in use by different companies that have indicated brand origins for more than a decade, although their legal subsequent developments were protection and registration. For example, the coca cola contour bottle, originally designed in 1915, only got trademark registration in 1860.5 Coco cola’s packaging bottle shape has achieved iconic status and is in itself the world’s most recognizable single brand. Since the 1830s, color marks have existed. Tiffany retains a stamp of color on its icononic ‘tiffany blue’ packages- exclusive blue boxes for its jewelry. Tiffany blue is a shade of light blue produced by the company from 1845 onwards for its own goods. Another example is pink colour trademark. Owens Corning, from 1956 to provide visual contrast, the corporation’s insulation was painted pink. As a result, the company became so associated with its pink insulation it registered the word mark PINK. Although combinations of colors were long. Although protectable as a trademark, it wasn’t until the 1980s that the US law accepted a single color as a trademark when Owens-Corning launched its fiberglass building insulation campaign Thinkpink. History also shows a trademark may also be a stitching pattern. Efficient from 1873 Levis Strauss