When Does A Feature Become A Brand? A Summary Of The Argument On Distinctiveness, Functionality, And Consumer Perception In Indian Trademark Law
Bhatt Dhwanit, LLM, Gujarat National Law University
ABSTRACT
India's Trade Marks Act, 1999 formally extended trademark protection beyond words and logos to shapes, packaging, colour combinations, and, through delegated rules, sounds. This article asks whether that statutory expansion has been matched by a doctrinal framework capable of telling a genuinely source-identifying non-traditional feature apart from one that is functional, aesthetic, commonplace, or otherwise incapable of performing a trademark's job. Using doctrinal analysis of the governing statute and rules, an examination of Indian case law on shape, colour, and sound marks, and a comparative reading of European Union, United Kingdom, and United States doctrine, the article argues that India's difficulty is not the diffuse one of applying settled principles to novel signs. It is a specific, three-part deficit: a functionality exclusion confined by its own text to the shape of goods; a distinctiveness threshold applied identically across sign types despite requiring markedly different evidence for each; and procedural rules operationalising registration only for sound. The 2018-2019 Delhi High Court litigation over Christian Louboutin's red sole, in which a single colour was first held incapable of being a mark and then protected only by recharacterising the claim as one over position, is read as the clearest symptom of this gap rather than an isolated anomaly. Drawing on this diagnosis, the article proposes a revised four-stage inquiry, calibrated by sign type, for Indian courts and the Trade Marks Registry, and argues that comparative doctrine should inform this framework's structure without being transplanted wholesale, given India's distinct evidentiary and institutional conditions.
Keywords: Non-Traditional Trademarks, Trademark Distinctiveness, Functionality Doctrine, Consumer Perception, Shape Marks, Colour Marks, Sound Marks, Position Marks, Indian Trademark Law, Comparative Trademark Law, Trade Marks Act, 1999, Trade Marks Registry.
