A Critical Comparative Analysis Of The Contemporary Challenges Revolving Non- Conventional Trademarks And Its Registerability In India And The USA
Sumedha Sainath, School of law, Christ (Deemed to be) University
ABSTRACT
In the past few years, trademark offices all over the world has dealt with trademark registrations for shapes, odours, flavours, texture, body gestures, etc. The variety of indicators that businesses attempt to register as trademarks and employ in the consumer market demonstrates that trademark legislation is a living entity. The trademark enrolment processes have traditionally evolved round the conceptual subject matter, it necessitates a rethinking of certain basic premises encompassing this domain of Intellectual Property. The registration process takes into account sign or mark characteristics such as pictorial representation, inherent and acquired distinctiveness, and functioning, all of which have been established as ways and means of excluding challenging subject matter. The most compelling demand for unconventional trademarks stems from market-savvy enterprises' desire to produce and promote their goods in a way that appeals to the aesthetic perspective of the buyer. However, the nature of such markings presents certain critical concerns. It should not be forgotten, for example, that non- traditional markings are notoriously unstable provenance symbols and are seldom employed without supplementary verbal or symbolic marks to substantiate them. The Indian engagement with unusual markings has not been a happy one. Perhaps, India may learn from the legislation of other industrialised countries and incorporate required acts into existing laws or improve scientific endeavours. A note of caution which is required here is thatthe American tactic of "everything goes" looks to be completely unsuitable for the Indian legal system. At the same hand, Europe's Sieckmann perspective, which compels courts to perform a rigorous investigation, may exclude circumstances where industry rivalry and a varied range of customers support the use of such brands. This article discusses the myriad varieties of non-traditional trademarks that have lately arisen on the commercial scene. It also covers and describes the launch of their registration procedure under India's trademark regime.
Keywords: Non-conventional marks, Distinctiveness, Trademark, Graphical Representation, TRIPS.
