Seasonal and time-bound products: A trademarks perspective

Many businesses around the world introduce products according to the season or for a limited duration of time as their primary brands or secondary brands. Seasonal products are typically found around specific times of the year or a recurring holiday when demand for certain products is heightened. We all know a few seasonal products like Easter eggs, specialty chocolates for Valentine’s day or Christmas, favorite summer drinks, apparel, etc. Similarly, time-bound products are sold only for a limited amount of time to create a sense of urgency and exclusivity amongst consumers. For example, businesses often launch temporary product lines to align with trends or festive occasions. This strategic use of seasonality and time-bound offerings raises important questions about intellectual property protection. Many countries around the world provide a robust mechanism to protect such creations. For example, the French Intellectual Property Code provides a non-exhaustive list of protected works, including seasonal creations[1]. Therefore, it becomes pertinent to examine how Indian law, particularly Trade Mark Law, protects the brand identity and exclusivity of seasonal and time-bound products.

There are several compelling examples that highlight the intersection between trademark law and such products:

Fabergé Eggs: A Legacy of Exclusivity

Fabergé Eggs are luxury, jewel-encrusted creations originally crafted by the House of Fabergé for the Russian imperial family since the 1800s. These eggs are not seasonal in the traditional sense, but their association with Easter and their limited production make them a prime example of time-bound exclusivity. The Fabergé name is trademarked, ensuring that only authorized products can bear the prestigious branding. Since only a few dozen imperial 

Fabergé Eggs were ever made, their rarity enhances their value. The brand maintains exclusivity by limiting production of modern Fabergé-inspired designs.

Cadbury Easter Eggs: A Seasonal Trademark Strategy

Cadbury Easter Eggs are a classic example of seasonal branding, appearing in stores primarily around Easter. Unlike Fabergé Eggs, these are mass-produced, but their availability is time-bound, reinforcing their seasonal appeal. Cadbury has trademarked specific elements of its Easter eggs, including the shape, packaging, and even the shade of purple used in branding. This prevents competitors from using a similar trade dress, get-up, and distinctive elements associated with Cadbury. Cadbury has been involved in trademark disputes, particularly regarding its purple packaging, which it successfully defended against Nestlé which highlights the use of colour trademarks in seasonal branding.

McDonald’s India’s Limited – Special Flavoured Time Burgers

McDonald’s India often introduces regional special burgers available for a limited period. The company trademarks unique product names, ensuring brand recognition.

Seasonal Logo Changes in the Fashion Industry: A Strategy of Timed Exclusivity In the fashion industry, seasonal logo changes are a strategic way to align brand identity with current trends, collections, or cultural moments. Brands like Burberry have used this approach effectively by reintroducing heritage logos such as the Equestrian Knight for specific seasonal collections to reflect a return to traditional aesthetics. Streetwear and sportswear labels, including Supreme and Nike, frequently modify their logos for holidays or special drops, incorporating seasonal elements like festive patterns, colours, or icons. These changes are often for a limited time and tied to specific product releases, enhancing their collectible appeal. While core logos are always trademarked, brands may also protect seasonal variations through additional trademarks ensuring brand integrity and exclusivity during peak cultural or commercial moments.

The Indian Perspective

Around the world, marks for seasonal products are protected. For example, there are several Easter related trademarks registered in the European Union, such as “OSTER” for spirits, alcoholic beverages, wines, etc., Lindt’s gold shaped easter bunny is granted trademark protection in Switzerland. Trademarks for products of such nature can be easily registered in India. Moreover, since India allows marks to be applied for registration on a proposed to be used basis registration may not pose a challenge. However, an important criterion that cannot be overlooked is the distinctiveness of a mark and its capability to distinguish itself from the products/services of others. For example, a mark containing descriptive elements like ‘colour’, ‘organic’, etc., for organic Holi colours will not be registrable.

For seasonal or time-limited products, the very nature of these products may pose a significant challenge for trademark holders. Delving deeper, a mark’s basic functions are identification of goods, origin, quality and establishing association with the manufacturer through adequate use. For most products of such nature that are reliant on the demand of the public, use of the marks may not be continuous and may be intermittent. Therefore, maintaining use would become extremely crucial. While the Courts have held in several rulings that any use, and not just continuous use, is enough to establish proprietorship over a mark, intermittent use may be a roadblock in trademark enforcement. Suppose a cancellation action is initiated for removing that mark from the Trade Marks register, in such cases, intermittent and non-voluminous use may not be sufficient. In India, the law says that a mere casual, intermittent or experimental use may be insufficient to show an intention to adopt the mark as a trademark for specific article or goods,[1] and by extension, may not be enough to establish adequate use in a cancellation action. Further, it has been held by the Madras High Court that a trademark owner will not be able to avail the benefit of prior use in an infringement action if the use has been non-continuous, intermittent or seasonal.[2] Similarly, in another judgment by the Delhi High Court, it was held that even though the prior adoption was established, the sales invoices were intermittent and did not indicate a continuous and voluminous use, failing to establish prior use.[3]

some insights as to how a standard may be formulated that accounts for the specific nature of the products. Genuine use translates to use of a mark in public such that it effectively fulfils all essential functions and in case of seasonal products, especially consumer association. In the case of Polfarmex SA v EUIPO,[1]  it was observed that racing cars are much lower in demand than other automobiles due to factors such as everyday road use, expenditure, price point, etc., resulting in less production and sales. As a result, it was highlighted through this case that genuine use is determined by the demand of that product in the market. Additionally, in cases where demand for the product is intermittent, sales figures cannot be the primary focus; rather, it is the advertising of the brand and the extent and scale of that advertising that establishes genuine use. Further, the EUIPO guidelines regarding the standard of proof of use clarify that use need not always be quantitatively significant for it to be deemed genuine, as that depends on the characteristics of the goods  or services concerned in the corresponding market.

Trademark Strategy for Seasonal and Time-Bound Products

To ensure the strength and enforceability of a trademark for seasonal or time-bound products, businesses should consider the following strategies:

Distinctiveness: ensure the mark is unique and not descriptive of the seasonal product itself, maintaining a clear association with the brand even during limited-time availability. Further, like Cadbury and the Lindt’s Easter Bunny, brands should consider protecting unique design elements, which can help to create strong associations with their seasonal products. For ensuring distinctiveness, a thorough trademark search is necessary even for such products.

Use of the mark: The trade mark should necessarily be used during the particular season, event, etc in such a manner that it is effectively communicated and public can establish an association with the market.

Clear Use Evidence: ensure detailed records of when and how the mark is used, even if it is for a short period, such as sales, export records, advertisement and promotional material, etc.

Defend Exclusivity: Brands should actively monitor trademarks in the relevant industry for similar marks that increase the likelihood of infringement, and actively take legal action if others attempt to infringe on their marks, ensuring continued exclusivity.

Licensing and Collaboration: Businesses can license their seasonal product designs, packaging, or even character trademarks to other companies during a limited period. This adds another layer of protection and revenue, as well as increases brand visibility. For example, Disney’s Licensing Agreements for holiday-themed products with Macy’s, Hallmark, etc. Such collaborations often involve trademark protection not just for the brand itself, but also for the specific way in which products are packaged, advertised, or sold.

Conclusion

In today’s fast-evolving consumer markets, seasonal and time-bound brands are of immense value to businesses. From luxury items like Fabergé Eggs to mass offerings such as Cadbury’s Easter Eggs, McDonald’s limited-time regional burgers, or clothing, the demand for such goods poses an opportunity. However, the transient nature of such offerings poses unique challenges from a trademark law perspective. While Indian trademark law does not yet provide a specific framework tailored to the seasonal nature of products, general principles enshrined in the trademarks act, such as the requirement for distinctiveness and use, still apply. It is, therefore, essential for businesses to adopt a proactive trademark strategy, ensuring their marks are distinctive, effectively communicated during the product’s market presence, and protected against potential infringement. Drawing lessons from international frameworks like the EU's principle of genuine use, Indian law may gradually evolve to address the intricacies of seasonal trademarks. Until then, strategic planning, consistent branding, and vigilant enforcement remain the best tools for protecting trademarks associated with seasonal and time-bound products.

References:

1. Century Traders vs Roshan Lal Duggar Co. on 27 April, 1977, AIR 1978 DELHI 250

2.  New Hope Food Industries (P) Limited vs Pioneer Bakeries (P) Limited on 20 December, 2007, AIR 2008 (NOC) 987 (MAD.

3. Peps Industries Private Limited vs Kurlon Limited on 16 March, 2020 AIRONLINE 2020 DEL 462

4.  T-677/19