Introduction

The real meaning of trademark law has traditionally been dominated by conventional marks—words, logos, symbols, and combinations thereof. However, with the

expansion of global commerce, brand owners have increasingly explored alternative ways to distinguish their goods and services. This has led to the rise of unconventional or non-traditional trademarks.

Unconventional trademarks go beyond traditional identifiers. They may include sound, color, smell, shape, texture, motion, and even taste. These types of marks

challenge the boundaries of what qualifies as a trademark and test the adaptability of legal frameworks across jurisdictions.

Definition of Unconventional Trademarks

A trademark, under Section 2(1)(zb) of the Indian Trademarks Act, 1999, is defined 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…”

An “unconventional trademark” refers to a non-traditional sign that can identify and distinguish the source of a product or service but does not fall into the typical

categories of words, devices, or logos. This includes trademarks based on:

• Sound (aural)

• Shape (3D or product configuration)

• Color

• Smell (olfactory)

• Motion

• Taste

• Holograms

• Textures

To be registrable, these marks must meet two core criteria:

• They must be capable of graphical representation.

• They must be distinctive or have acquired distinctiveness through use.

Types and Examples of Unconventional Trademarks

Let’s examine each category in detail along with prominent global examples.

Sound Marks

Sound marks are audio representations that serve as brand identifiers. These marks must be distinctive and directly associated with the product or service.

Examples:

• The “Yahoo!” yodel (registered in India).

• The MGM lion’s roar (registered in the U.S.).

• Intel’s four-note chime.

• Nokia tune.

Legal Challenge:

A sound must be represented in a manner that can be objectively identified. Under Indian law (Rule 26(5) of the Trade Marks Rules, 2017), such representation is

possible using musical notations or spectrograms.

Shape Marks (Three-Dimensional Marks)

Shape marks include the three-dimensional configuration of a product or its packaging, provided that it is not functional or standard in trade.

Examples:

• The Coca-Cola bottle (protected in many jurisdictions).

• The shape of the Toblerone chocolate bar.

• Zippo lighter’s unique shape (registered in India).

• The shape of Ferrero Rocher packaging.

Legal Position:

Section 2(1)(m) of the Indian Trade Marks Act includes “the shape of goods, their packaging and combination of colours” within the definition of “mark”. However, functionality is not protected.

Color Marks

Specific colors, or combinations of colors, may acquire distinctiveness and be associated with a brand.

Examples:

• Cadbury’s distinctive purple color (Pantone 2685C).

• Tiffany & Co.’s robin egg blue.

• Christian Louboutin’s red soles (protected in EU under color + position).

Legal Position:

In India, color per se is not easily protected unless it acquires secondary meaning through use and consumer association. Representation must be clear, precise, and include Pantone codes.

Smell (Olfactory) Marks

These involve distinct scents uniquely associated with goods/services. Due to the challenge of graphical representation, registration is very rare.

Examples:

• A floral fragrance for thread and yarn (registered in the U.S.).

• A scent described as “fresh cut grass” (attempted registration for tennis balls).

Legal Position:

India does not recognize smell marks yet due to difficulties in fulfilling graphical representation criteria.

Motion Marks

These are trademarks with moving components that form a part of the branding. Examples:

• The animated sequence of Microsoft Windows logo.

• The Lamborghini car door opening upwards.

Legal Position:

Motion marks can theoretically be registered in India if the applicant can represent them graphically using image sequences and descriptions, but actual registrations are minimal.

Taste Marks

These are perhaps the most controversial and difficult to register. Taste is inherently subjective and not possible to represent graphically or maintain consistently.

Example:

A Dutch company attempted to register an orange taste for medicine rejected by the European Court of Justice in Sieckmann v. German Patent Office (C- 273/00).

Legal Position:

India does not permit taste marks.

Hologram Marks

A hologram mark consists of a three-dimensional image that changes appearance depending on the angle of view.

Examples:

1. Mastercard hologram embedded on cards.

1. Security holograms used on branded packaging.

Legal Position:

• While theoretically registrable under the Indian Act, there is no precedent yet.

• Position of Unconventional Trademarks in the United States and European Union

United States

Governing Law: Lanham Act (Trademark Act of 1946)

The USPTO allows the registration of unconventional marks provided they:

• Are non-functional.

• Have acquired distinctiveness (secondary meaning).

• Can be clearly and accurately represented.

Significant Cases:

• Qualitex Co. v. Jacobson Products Co. (1995): Recognized color as a registrable trademark if it has acquired distinctiveness.
  • In re General Electric Broadcasting (1978): First case for sound marks.

• Harley-Davidson’s attempt to register the sound of its V-Twin engine was eventually abandoned due to objections and difficulties in proving distinctiveness.

Graphical representation is not required under U.S. law, but the mark must be “definite” and “describable.”

European Union

Governing Law: EU Trademark Regulation (EUTMR) and decisions of the Court of Justice of the EU (CJEU).

Key Development.

The 2017 reform eliminated the requirement for “graphic representation,” instead requiring that a trademark be represented in a manner that is “clear, precise, self-contained, easily accessible, intelligible, durable and objective.”

Examples:

• Sound: Audi’s signature sound.

• Color: Louboutin red sole (CJEU confirmed it as a position + color mark).

• Motion: Huawei’s animated boot-up logo.

Significant Case:

• Sieckmann v. DPMA (C-273/00): Established the “Sieckmann Criteria” for non-conventional trademarks—representation must be precise, clear, and intelligible.
• Position in India – The Trade Marks Act, 1999 and Trade Marks Rules, 2017

Statutory Framework

• The Trademarks Act, 1999 includes unconventional marks under the broad definition of “mark” (Section 2(1)(m)) and “trademark” (Section 2(1)(zb)).
• The Trade Marks Rules, 2017 clarify procedural aspects of filing such marks.

Sound Marks

As per Rule 26(5) of the Trade Marks Rules, 2017:

• Sound marks must be submitted in MP3 format not exceeding 30 seconds.

• A graphical representation using musical notations must accompany the file.

First Indian Sound Trademark: Yahoo! Inc.’s “Yahooooo” yodel.

Shape Marks

Shape marks are registrable provided they are not:

• Functional in nature.

• Necessary to obtain a technical result.

• Giving substantial value to the goods.

Color Marks

In India, color marks can be registered only if:

• The color has acquired secondary meaning.

• It is associated with the origin of the goods/services.

Procedural Requirements

• Section 18 of the Act provides for application.

• Rules 25 and 26 govern the filing and representation requirements.

• The applicant must demonstrate that the mark is capable of distinguishing goods/services.

Limitation in Indian Law

• Scent, taste, motion, and hologram marks are not explicitly recognized.

• Enforcement of non-conventional marks is still evolving through judicial interpretation and international influence.

Challenges in Registering Unconventional Marks

1. Subjectivity in assessing distinctiveness.
2. Graphical or objective representation difficulty.
3. Lack of consumer recognition.
4. Resistance from examiners due to lack of precedent.
5. Possibility of being considered functional or decorative rather than distinctive.

Conclusion

Unconventional trademarks represent a fascinating intersection of law, marketing, and innovation. As brands strive to stand out in competitive markets, non-traditional identifiers like sound, shape, and color become important tools. While jurisdictions like the U.S. and EU have evolved frameworks to accommodate these marks, India is still in its formative stages of embracing and protecting such trademarks.

To facilitate broader recognition and enforcement, Indian law may eventually need to relax its graphic representation requirement, as seen in the EU post- Sieckmann. Until then, careful brand strategy, consumer association evidence, and compliance with procedural rules remain essential for successful registration