A trademark is a  mark capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours. Trademarks are usually in the form of marks, numerics, symbols etc. However, certain marks and symbols like the sound of an object or smell marks which are not included in the definition of trademark are still protected and given the same status as given to traditional trademarks. These symbols are categorized as unconventional mark that are distinctly different from the traditional trademarks. 

Unconventional Mark

An unconventional mark consists of all the symbols, sounds or smell that do not fall in the category of traditional trademarks. The communicative ability of an unconventional mark makes it distinctly different from the ordinary trademarks. There are certain conditions that have to be fulfilled in order to fall under the category of unconventional marks, they are as follows:

• Such a mark shall be inherently or naturally distinctive from ordinary trademark
• Such a mark should be capable of being represented graphically.
• Such a mark should be able to distinguish the product from other products in the market.

Types of Unconventional mark 

Following are the types of unconventional marks which are recognized presently:

• Motion  Marks: An animated motion art or logo used for marketing of a certain product , usually presented via various images in a series so as to give it an illusion of movement, is known as a motion mark. Such a mark can be registered as an unconventional mark if it fulfills all three criteria required for a mark to be an unconventional mark.

• Colour Marks: There are various colours that are used by companies on their product as a mark of distinction from other products , such colour itself distinguishes the product from other similar products, these marks are called colour marks. These are categorised as an unconventional mark since people can distinguish  certain products on the basis of their colour alone and thus , it is protected as a trademark .

• Sound Mark: There are various musical notes or sounds that can make a product distinct.  For instance, the tune used by Nokia can make people recognize that  the particular tune is used by Nokia. However, it has been established in various instances that for a sound to be registered as a trade mark , there has to be evidence of distinction of that sound in regard to the brand. If such evidence can be produced , then it is given the status of an unconventional mark and is protected by the law.

• Scent Mark: This is one of the most difficult trademarks in terms of registration, since it is not possible to represent a scent graphically. Since, the capability of a mark to be represented graphically is one of the most important criteria of being an unconventional mark, scent marks are difficult to describe and thus, not easily registerable. 

However, there are some factors, if proved , that can get the scent marks registered, they are as follows:

• That particular type of  product is  only marketed by the applicant 
• The scent to be protected as a trademark should not be a natural feature of the product, but shall be artificially added to the product by the applicant.
• The scent is an integral part of marketing of the product
• It is to be proved that the scent alone makes the product distinguishable by the customers 

Development of Unconventional mark in India 

Trademark protection has developed drastically over the last decade in India. As a signatory to the Paris Convention for Protection of Industrial Property and Agreement on Trade-related aspects of Intellectual Property Rights( TRIPS), India enacted The Trademarks Act in 1999. It protects trademarks as intellectual property. 

However,  the definition of trademark given in the act does not encompass certain marks and symbols such as sound, colour etc. These marks required protection as an Intellectual property. 

The requirement for any mark to be considered as a trademark is that such a mark is capable of graphical representation, however, colours, scents or sound cannot always be described through graphical representation. 

To bridge this gap, India has adopted the Shield Mark doctrine.

 This doctrine developed through various cases in the English courts. 

In the case of Sieckmann vs Deutsches, the court provided that the requirement of graphical representation is not inclusive of colour marks, sound marks. And in lieu of that gave two criterias or features for an unconventional mark :

• Capable of graphical representation 
• Capable of being distinct enough for the consumers to recognize the brand

If these two conditions are fulfilled, the mark will be protected as a trademark.  And the doctrine laid down in these English cases was adopted in India and used in various judgments by the Indian Courts.

In lieu of this doctrine, various colors, scents, sounds or any other unconventional mark are protected.  For instance, the purple colour used in Cadbury product packaging is given a status of trademark in India.

In the case of Colgate Palmolive Company vs Anchor Health and Beauty Care Pvt Ltd,  The Court recognized colour as a part of a trademark and gave protection to it as an Intellectual property^[1]. 

However, the unconventional mark protection is still evolving and gaining momentum.  The Shield Mark doctrine is not sufficient enough presently for an unconventional mark to be protected and registered.

Conclusion

With the changing time, the laws for trademarks are evolving. There are new and evolved rules for trademark protection. However, it is not inclusive enough. The unconventional marks are yet to rise in India. However, there are a few precedents and doctrines like the Shield mark doctrine which has recognized these marks as an Intellectual property.  If these marks are recognized and protected properly, it will incentivize new undertakings since it is more convenient and easier for consumers to distinguish between products on the basis of colour, sound etc. The use of unconventional marks will not only encourage the companies but also lead to an innovative approach increasing interest in the market.

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