Unconventional Trademark

An unconventional trademark is a type of trademark supplementary to goods or brand name.

According to section 2(zb) of the Trademark Act, 1999 if the unconventional trademark is
capable of being distinguished and has its own distinct identity, thus it is considered that
unconventional trademark is also a form of Regular Trademark.

Development of unconventional trademark

Trade Related Aspects to Intellectual Property Right (TRIPS) agreement is credited for the
development of unconventional trademark. In the field of intellectual properties TRIPS is an
international convention. And being a signatory to TRIPS agreement and Paris agreement
India is under obligation to foster the guideline set in these convention.

In the last 10 years trademark and unconventional trademark laws had developed in a high
pace, due to conventions and TRIPES. And now the trademark law have moved into very
new dimension in India.

Requirements of unconventional trademark

For the registration of an unconventional trademark certain conditions are required to be

fulfilled-

1. There should be fundamental distinctive in the mark

2. A particular product can be distinguished easily from other product with the help of the
mark.
3. And the graphical representation of the mark.

Requisites for graphical representation

1. Sign can exactly be determined with the help of graphical representation.

2. The mark used by the applicant can be replaced by the graphical representation because
it represent that sigh and no other.

Occurrence of registration in India

1. Distinct identification- unconventional trademark should be distinct so that there should

be no dispute in future. OHTM’s examiner manual gives importance of distinct
identification, that is-
 Legal requirement is established for the mark representation.

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  It can be easily understood, what applicant is attempting to register.
2. Those trademarks or the unconventional trademarks which are not clearly mentioned in
the act or the rules, where the examiners and registrars of trademark could ask for more
information from the person.

Till date there are 3 unconventional trademark which are registered in India

 Yahoo’s pronunciation as ‘Yodel’ was the first unconventional trademark being

registered in India and it was graphically represented through musical notes.1
 The second one being trademark for a shape of ‘Zippo lighter’ and its legality was
upheld by the court where its trademark was challenged stating that a shape can be
trademarked provided that it is peculiar and distinctive.2
 The last one being a sound mark registered by a German company which registered
the sound ‘Allianz Aktiengesellschaft’.3

Conclusion

Theoretically there is no productive difference between a normal trademark and

unconventional trademark. But to expand the area of unconventional trademark, fact that the
trademark for the description are to be graphically represented, the laws relating to such
extent should be liberalized. In this dynamic time the only way for success of any business is
innovation. The creativity and the innovation can arise in any form such as brand image,
colour, shape, etc., which plays an important role and there is immediate necessity to immune
the law related to trademark to safeguard the interest of such ideas. The trademark laws must
be more dynamic so that it could cope up with the international requirements.

1
Peter Ollier, Yahoo Yodels into India’s TM Registry, 183 MANAGING INTELLECTUAL PROPERTY, 14
(2008).
2
Zippo v. Anil Manchandani (unreported, CS (OS). 1355/2006).
3
Santosh Singh, Yet Another Sound Mark Granted, SPICYIP, 30 July 2009.

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