Non-Conventional Trade Marks in India

National Law School of India Review, Vol. 22, No. 1, pp. 67-96, 2010

30 Pages Posted: 19 Feb 2010 Last revised: 27 May 2010

See all articles by Dev Saif Gangjee

Dev Saif Gangjee

Faculty of Law, University of Oxford

Date Written: February 19, 2010

Abstract

In recent years, trade mark registries and courts have grappled with trade mark applications for silhouettes, shapes, scents, textures and tastes, as well as short cartoons, single colours, body movements and Tarzan’s yell. This invasion of the unconventional is due to the open ended definition of a trade mark. On the one hand, trade mark law has embraced a definition that emphasises the functional, rather than the ontological, status of a sign. Anything which does the communicative work of a trade mark, by distinguishing goods on the basis of trade origin, can be registered as one. On the other hand registration systems have historically developed around paradigmatic subject matter: a conventional or traditional trade mark that is visual and consists of words and/or figurative devices. The need to reconcile these conflicting imperatives – the system is open to all categories of signs and it’s apparently ‘business as usual,’ yet the registration system was designed with only words and figurative devices in mind – requires a careful reconsideration of certain basic assumptions in this area. The Indian Trade Mark Registry's Draft Manual of Trade Mark Practice and Procedure provides the contextual framework for this reappraisal and this article responds to the various approaches it has adopted to acommodate such signs.

Keywords: Trade Mark, Intellectual Property, India, Non-Conventional, Unconventional

JEL Classification: O34

Suggested Citation

Gangjee, Dev S., Non-Conventional Trade Marks in India (February 19, 2010). National Law School of India Review, Vol. 22, No. 1, pp. 67-96, 2010. Available at SSRN: https://ssrn.com/abstract=1555807

Dev S. Gangjee (Contact Author)

Faculty of Law, University of Oxford ( email )

Cowley Place
Oxford, OX4 1DY
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
1,287
Abstract Views
3,961
rank
14,765
PlumX Metrics