Unconventional Trademarks in India: Sound, Colour, Smell, Shape & Motion Marks under Trademark Law

INTRODUCTION

A Trademark is a form of Intellectual Property Rights, that protects the Mark. Marks include the device (logo), heading, label, ticket, signature, name, word, letter, numeral, shape of goods, packaging or combination of colours or any other combination. Trademarks are governed in India by the Trademark Act 1999. Section 2 (1) (zb) defines “trademark” as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours”.

UNCONVENTIONAL TRADEMARKS

Unconventional trademarks are non-visual and incapable of effective graphical representation, for example, touch, smell, colour, shape, texture, sound and taste. Two essential conditions for trademark registration are the ability to distinguish goods or services and a graphical representation. Unconventional trademarks lack both the essential features, thus face obstacles in the registration process, with the exception being sound trademark as they can be registered graphically through notations. Although the Trademark Act,1999, does not specifically define unconventional or non-traditional trademarks, their recognition can be traced in the Trademark Rules, 2017, including sound, shape and colour.

DIFFERENT TYPES OF UNCONVENTIONAL TRADEMARKS

1. SOUND TRADEMARKS

Sound trademarks involve a unique sound that indicates the source of goods or services. For a sound to get registered as a trademark, it must be distinctive so that it allows customers to relate it to a company, and it must have a graphical representation, either composed of musical notes or other descriptive representations. Under rule 26 of the Trademark Rules, 2017, it is stated that, “Where an application for the registration of a trademark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format not exceeding thirty seconds’ length recorded on a medium which allows for easy and clearly audible replaying accompanied with a graphical representation of its notations”. 

Examples of Sound Mark-

• In 2008, Yahoo Inc’s Yodelling “Yahoo!” voice was the first registered Sound Trademark in India (Application number 1270407).
• On January 7, 2026, IHCL (Taj Hotels) registered its sound mark, which consists of musical notes “D E EG A E”. 
• Iconic Nokia Tune (Application number 1365394)
• Netflix “Ta Dum” sound

The underlying reason for being registered is the ability to be represented either in notation, words or a graphical manner.

2. COLOR TRADEMARKS

Colour trademarks consist of colours that help in distinguishing goods or services. It can be registered as a single colour or a combination of colours. It is given under rule 26 of the Trademark Rules, 2017 that, “Where an application contains a statement to the effect that the applicant wishes to claim combination of colours as a distinctive feature of the trademark, the application shall be accompanied with reproduction of the trademark in that combination of colours”.

Examples of colour trademark

• In the case of Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd, IA No.3502 of 2003 in Suit No. 691 of 2003, the Delhi High Court protected Colgate’s ‘red and white’ colour combination as the consumers associate this colour combination with Colgate. The court restrained Anchor from using a similar colour combination as it is likely to cause confusion among consumers.
• Cadbury obtained a trademark for the specific shade of purple (Pantone 2685C).
• In the case of Christian Louboutin SAS v. Abu Baker and Ors., CS (COMM) No. 890/2018, the Court held that a single colour can not be trademarked.

3. SMELL TRADEMARKS

Smell trademarks are also known as Olfactory trademarks, in which distinctive scents are used as a source identifier. Sumitomo’s rose-scented tyres are India’s first accepted smell trademark. The application was filed by Sumitomo Rubber Industries Ltd. (Japan). The Mark is “FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES” (Application number 5860303, Class 12). This trademark is accepted by the Trademark Registry as the graphical representation of smell is depicted by a Seven-Dimensional Vector,prepared by a researcher at IIT Allahabad. It is distinctive as the rose scent has no fragrance with the tyres, thus the scent is arbitrary for tyres. 

4. SHAPE TRADEMARKS

Shape trademarks deal with multi-dimensional or 3-D marks associated with the shape of a product or services. Mentioned under rule 26 of the Trademark Rule, 2017, “Where an application for the registration of a trademark consists of the shape of goods or its packaging, the reproduction furnished shall consist of at least five different views of the trademark and a description by word of the trademark”. Section 9 of the Trademark Act,1999, states a trademark shall not be registered if it consists exclusively of the shape of goods which results from the nature of the goods themselves, or the shape of goods which is necessary to obtain a technical result, or the shape which gives substantial value to the goods

Examples of Shape trademarks-

• Shape of Coca Cola bottle
• Shape of the Pepsi bottle

             In the case of Nestle v. Cadbury UK Ltd (2016), Nestle’s Kit Kat chocolate bar attempted to trademark its 3D shape of a four-fingered bar, Cadbury opposed this registration, and argued that the shape was not distinct.

5. MOTION TRADEMARKS

Motion logo involves moving image or clip; these logos are used by companies as an innovative marketing strategy. Registration of the Motion logo is difficult because of its graphical representation. There is no provision in the Trademark Act, 1999, which allows representation of a motion mark through video files. It is represented through a sequence of images showing the movement of the trademark.

Examples of Motion Trademark-

• “Connecting Hands” animation used by Nokia Corporation (Application Number – 1246341).
• Toshiba Movement Trademark by Toshiba Corporation (Application Number-4093005).

CONCLUSION 

Along with the conventional trademark, trademark law has expanded to recognize unconventional trademarks, like sound, colour, smell, shape and motion, but these trademarks face challenges due to distinctiveness and graphical representation. Several Unconventional trademarks have gained recognition through judicial interpretations and the Trademark Rules, 2017. The acceptance of olfactory marks, such as “FLORAL FRAGRANCE/ SMELL REMINISCENT OF ROSES AS APPLIED TO TYRES”, and Motion trademarks reflects a progressive approach in the field of IPR. However, there is still a need for stronger and clearer legislative guidelines to ensure the protection of unconventional trademarks.

Link to similar articles: https://jpassociates.co.in/rose-scented-tyre-first-smell-trademark/

REFERENCES 

1. The Trademark Act, 1999 – https://www.ipindia.gov.in/writereaddata/Portal/ev/TM-ACT-1999.html
2. The Trademark Rules, 2017 – https://ipindia.gov.in/Trademarks/TM_Rules_2017
3. Bar and Bench- https://www.barandbench.com/view-point/breaking-the-mold-exploring-the-boundaries-of-unconventional-trademarks-part-ii
4. https://csipr.nliu.ac.in/miscellaneous/charting-the-unconventional-recognition-and-challenges-of-unconventional-trademarks-in-the-indian-ipr-regime/
5. Indian Kanoon – 
6. Colgate Palmolive Co. v. Anchor Health and Beauty Care Pvt. Ltd, IA No.3502 of 2003 in Suit No. 691 of 2003- https://indiankanoon.org/doc/1306228/
7. Christian Louboutin SAS v. Abu Baker and Ors., CS (COMM) No. 890/2018- https://indiankanoon.org/doc/175186752/