TRADE MARKS – Traditional and Non-Traditional Marks
A Trade Mark is a mark capable of being represented graphically and of distinguishing a person's goods or services from those of others. Examples of traditional forms of trade mark include word marks, logos, device marks, slogans, letter marks or combination thereof.
Over a period of time, several other forms of trade marks have become popular and such marks are referred to as non-conventional or non-traditional marks. Examples of such marks include colour marks, shape of goods, their packaging, three dimensional marks, sound marks, smell marks, taste marks etc.
As the Indian Law categorically states that a trade mark must be capable of being represented graphically, some of the non-traditional marks are difficult to register in India. However, certain sound marks like the Yahoo doodle have indeed been allowed in India.
Background Of Indian Trade Marks Law
The Trade Marks Act, 1999 was enforced on September 15, 2003 and was amended by Trade Marks (Amendment) Act, 2010 which now governs the Trade Mark Law in India. The new Act was implemented to introduce various other provisions in conformity with the International Trade Mark Law. The Trade Marks (Amendment) Rules 2013 were made to give effect to the Trade Mark (Amendment) Act 2010. By notification dated 8th July 2013, the Trade Marks (Amendment) Act 2010 and the Trade Marks (Amendment) Rules, 2013 came in to force to enable India to accede to the Madrid Protocol. In 2014, the government further amended certain provisions of the Trade Marks Rules 2002.
The Indian Intellectual Property Office (IPO) is the primary office, which comprises of the Trade Marks Registry, The Patent Office, and The Designs Office in India. The Trade Marks Registry has 5 branches in India at New Delhi, Mumbai, Chennai, Kolkata and Ahmedabad which cover 5 zones in India. The functioning of the Trade Marks Registry is decentralized and all offices are empowered to handle cases of their jurisdiction. The 5 Trade Mark Offices share a central database and any registrations or decisions issued by such branches are valid all over India.
While an Indian applicant has to file applications in the Registry in its zone, a foreign applicant can choose to file an application where its representative Law Firm has an office.
India is a signatory to major international treaties affecting Trade Marks including, but not limited to, the Paris Convention; the Madrid Agreement and the Madrid Protocol; the TRIPS Agreement; the Nice Agreement and the Vienna Agreement. Details regarding the implementation of Madrid Protocol in India may be found here
It takes about 18 – 24 months to obtain a trade mark registration in India and the time frame may vary depending on complexity of the proceedings.