Issues in Graphical Representation of Color Mark

Intellectual Property Rights Research Paper

SUBMITTED BY SUBMITTED TO
Name-Amulya Anand Dr. M.R. Sreenivasa Murthy
Semester- VI B Associate Professor
Roll no- 917

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

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 Issues in Graphical Representation of Color Mark

1. INTRODUCTION: A trademark is a type of industrial property which is distinct from

other forms of intellectual property, which is used to distinguish a business or services.
Conventionally, a traditional trademark comprises a name, word, phrase, logo, symbol,
design, image, or a combination of these elements1.1 However, there are certain other ‘non-
traditional’ trademarks which have gained prominence in recent times and include sound
marks, odour marks, colour marks, shapes and taste marks. The Trademark Act, 1999
(hereinafter referred as “the Act”) defines “trademark” under Section 2(1)(zb) 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.” Under this provision, the mark should satisfy certain conditions
to fulfil the criteria of trademark. The words “a mark capable of being represented
graphically” provide that the mark should have a fixed point of reference. Under Section 2(1)
(k) of Trademark Rules, 2017 states that “graphical representation” means the representation
of a trademark for goods or services represented or capable of being represented in paper
form and includes representation in digitized form. A cursory reading of the above provisions
state that one of the foremost conditions to be categorized as a trademark is that the mark
must be able to represent graphically.

Color is so powerful that it can influence thinking, reactions, and stimulate bodily hormones.
It holds an array of meanings that manifest in the natural world, a ton of meanings that you
can write papers about it, as well as in the diverse cultures around the world. Color digs
deeper in human psychology; thus, designers can benefit from harnessing and incorporating it
in their designs. And the other point to keep in mind is that color attracts more quickly
compared to the sign, logo etc. the color registration is the new way of the representation in
the market. Further the color depletion theory keeps the restraining pavement between the
registration and rejection.

REVIEW OF LITERATURE
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Kerly D M, Law of Trade Names and Trademarks (Sweet and Maxwell, London), 2005, p.12

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In Libertel v Benelux, the CJEU considered whether a Dutch telecommunications company
could register the color orange for telecoms goods and services. Contrary to the Advocate
General’s opinion, the court held that a color per se, which is not bound by any shape or
outline, is capable of being registered as a trade mark.

In Sieckmann v Deutches, the CJEU addressed wither the smell of cinnamon (ethyl
cinnamate) could be registered as a mark. The Court held that smell could be a sign under
Article 2, but it must also be capable of being represented graphically – which despite the
sample and chemical formula, did not satisfy that requirement.

OBJECTIVES OF THE STUDY

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The objectives of this study is:

1. To study the changes in the act does the authors and owners feel protected about their
work.
2. To study and find the authors and owners necessary changes done according to their
requirement.
3. To study the changes that the society pave way for any incentive or further
development of the owners or authors.

RESEARCH QUESTIONS

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1. With the changes in the society, what are the relevant legislation attached with it?
2. To analyse the different issues associated with color mark?
3. What are the settled guidelines around the world for the graphical representation of
color mark?

RESEARCH HYPOTHESIS

1. Do the relevant legislation really protected with the changes evolved.

2. Are the existing issues associated with color mark changing with changes in
requirement.
3. Do the settled guidelines find any incentive to work with the emerging changes.

RESEARCH METHODOLOGY

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The research design of this research paper is descriptive, which allows the person to provide
insights and if not clear with any problem or statement the person can conduct exploratory
research.

SCOPE AND LIMITATION OF THE STUDY

The scope of this research work is on the works of the authors and owners during the changes
brought in the copyright society, and discuss the legal aspect of the societies of this decade.
The limitation of this research is lack of available and reliable data.

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 Conclusion

The conclusion of the present paper, keeping in mind the registration legislations available of
various countries it is clear that the while dealing with all the provisions of Non-conventional
trademarks it is clear that the present legislation has made the registration of Non-
conventional trademark more difficult, since there is no separate registration procedure for
Non-Conventional Trademarks. So necessary steps have to be taken by the Legislature to
amend the present Trademark Laws which will make the Registration of Non-conventional
much more easier. And the amended trademark legislations and the current amendments
made shows the way to the economic and liberal approach of the legislature and the judiciary.
Although the single color registration is still not a cake walk and requires a long process and
efforts of the owner.