Protection and enforcement of unconventional trademarks such as
colors, shapes, sounds, motions, smells, and tastes has always been
a subject of interesting debate under Indian law. This is due to
the fact that they add tremendous brand value to any particular
business because of the enhanced power of recollection they
effectuate.
The Trade Marks Act, 1999 ("Act") expressly recognizes
shape of goods, combination of colors and, when read with the
corresponding new Trade Marks Rules, 2017 ("Rules"),
sound as an acceptable trademark. Although taste, smell, motion
etc. have not yet been expressly recognized as trademarks, if they
are found to test well on the touchstone of distinctiveness and
capability of being represented graphically, they would deserve the
trademark status in India. In India, it may take many precedents
and legislative amendments before all aspects of unconventional
trademarks are comprehensively codified as a benchmark for times to
come.
