Divanshi Gupta, B.Com. LL.B. (Hons.), University Institute of Legal Studies, Panjab University
ABSTRACT
Traditionally, a trademark was referred to in its conventional form as any sign, word, slogan or symbol in two-dimensional form which is used to distinguish the products and services of one proprietor from others. The exponential growth of digital networking has prompted more companies to adopt methods of sensory marketing to create a distinctive and long-lasting impression in the minds of the consumers. With the change in time, the trademark law is also expanding its horizon from the traditional notion of marks to new form of non-conventional marks such as marks including or originating through color, smell, shape, taste, touch, sound, position and various other forms. The acquired distinctiveness has set the way for evolution of non- conventional trademarks around the globe. However, the issue regarding the registrability and functionality of these kinds of trademarks still remains uncertain and its protection under legal regime is still evolving through various precedents. Granting of trademark protection to these non-conventional marks is slowly gaining recognition in several countries. But under Indian Trademark Regime, non-convention trademark registration is difficult because of the pre-requisite condition on the graphical representation of the trademark which is followed strictly. This article discusses about the issues and the need for protection for such non- conventional marks in the recent era.
Keywords: Non-Conventional Trademark, Distinctiveness, Graphical Representation, Seick Mann Case, Functional Factors
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