Non-Conventional Trade Marks in India

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