Challenges In Registering Unconventional Marks Under The Trade Marks Act, 1999
- IJLLR Journal
- 26 minutes ago
- 1 min read
Dr. Prerna Gulati, Associate Professor, IILM University, Greater Noida (India)
Ms. Babita Rawat, LLM (IPR), IILM University, Greater Noida (India)
ABSTRACT
The Trade Marks Act, 1999 marked a significant legislative departure from its predecessor by expressly recognising the registration of shape of goods, packaging, and combination of colours as trademarks. Yet, despite over two decades of operation under this statute, the registration of unconventional marks including colour marks, sound marks, shape marks, smell marks, taste marks, motion marks, hologram marks, and position marks continues to encounter formidable legal and practical obstacles in India. The present research paper undertakes a systematic examination of the structural challenges that applicants face when seeking to register such marks under the Act. Proceeding from the definitional parameters in Sections 2(1)(m) and 2(1)(zb) to the procedural requirements under the Trade Marks Rules, 2017, and the Manual of Trade Marks Practice and Procedure, 2015, the paper analyses the twin pillars of graphical representability and distinctiveness as recurring barriers. Drawing upon a comparative analysis with international jurisprudence and an in-depth study of eight Indian court decisions rendered between 2015 and 2025, the paper identifies specific doctrinal deficiencies in the Indian regime including the absence of explicit statutory recognition for sound, scent, and taste marks, the lack of a coherent secondary meaning doctrine, and the underutilisation of non-visual means of representation. The paper concludes with targeted suggestions for legislative reform, administrative reform, and judicial recalibration to bring India's unconventional mark regime into alignment with contemporary global standards.
Keywords: Unconventional marks, non-traditional trademarks, graphical representation, acquired distinctiveness, Trade Marks Act 1999.
