RETHINKING TRADEMARKS: THE RISE OF NON-TRADITIONAL MARKS IN INDIAN IP LAW

Sudhiksha Srivatsan is a fourth-year student at CHRIST (Deemed to be University), Bengaluru, with a strong interest in intellectual property, media and technology law.

Introduction

Trademarks have developed to include a multimodal spectrum of brand identity, including distinctive sounds, colours, forms, smells, and even textures, in today’s fiercely competitive marketplace. Global intellectual property frameworks have changed to acknowledge and safeguard these cutting-edge brand assets as companies use these non-traditional trademarks more frequently to build stronger customer relationships and differentiate themselves in crowded markets. This shift reflects a growing global recognition that non-traditional trademarks can enhance brand distinctiveness and consumer engagement. International intellectual property forums, such as WIPO’s Standing Committee on Trademarks, Industrial Designs, and Geographical Indications (SCT), have officially acknowledged and discussed these innovative forms of trademarks.

However, India’s legal and administrative framework is still relatively underdeveloped, especially when compared to jurisdictions like the US and the EU, which provide more comprehensive procedural support for non-traditional trademarks, even though the country has taken some initial steps, such as recognising certain sound and shape marks.

Non-Traditional Trademarks: Growing the Idea of Brand Identity

An identifier that incorporates components like sound, form, colour, and scent in addition to the standard visual mark is referred to as a non-traditional trademark. These distinctive identifiers aid consumers in identifying the origin of goods or services, offering brand recognition in ways traditional marks cannot, as mentioned in the table below:

Category	Description	Example
Sound Mark	Trademark based on a unique jingle or audio cue.	Yahoo Yodel
Colour Mark	When a specific colour becomes strongly associated with a brand.	Cadbury Dairymilk‘s Purple for Dairy Milk packaging
Shape Mark	Product shape that serves as a source identifier.	Coca-Cola bottle shape
Motion Mark	Trademark where movement, animation, or a sequence of images uniquely identifies the brand.	Columbia Pictures’ iconic multimedia logo

One of the rarest types of non-traditional trademarks is the smell mark, wherein certain fragrances associated with a brand are protected. For example, the      USPTO has protected Hasbro’s Play-Doh as having a distinctively sweet, slightly musky, vanilla flavour with faint cherry overtones and the smell of salty, wheat-based dough. Although the definition of a Trademark as per the Trademarks Act of 1999 theoretically covers non-traditional markings, businesses find it challenging to secure sensory and dynamic identifiers because India’s legal framework and procedural standards are primarily geared towards visual marks. 

In addition to this, the role of digital goods in the Metaverse is shaping the future of IP law. These are contemporary, globally significant issues that have real implications for India as it evolves its trademark laws. On the international front, Trademark law has a developing role in the metaverse wherein individuals can create virtual goods, services, and experiences that require branding, as disputes over identity and branding may occur a lot in virtual environments. The Hermès International v. Rothschild case is a well-known illustration of this, in which Rothschild created NFTs linked to images of handbags that were marketed under the "MetaBirkin" brand that looked similar to the popular Hermès purses. While jurisdictions like the U.S. have extended existing trademark principles to cover NFTs and virtual goods, Indian law remains unclear. The Trade Marks Act does not define “virtual goods” or clarify whether digital assets constitute use “in the course of trade” under Section 2(1)(zb). This creates uncertainty around registrability and enforcement, especially on decentralised platforms. To address this gap, India must either expand the legal definition of “goods” or issue interpretive guidelines for trademarks in digital environments.

Another notable case is Nike v. StockX, wherein Nike sued StockX, a well-known online sneaker reseller, for introducing several NFTs linked to Nike footwear that enabled buyers to purchase NFTs linked to a tangible product. In order to prevent future disputes and preserve brand integrity online, people interested in virtual world development and NFT adoption must keep trademark issues in mind, as the decentralised and borderless nature of the metaverse makes it challenging to enforce IPRs. 

Another area seeing increasing reliance on non-traditional trademarks is the creator economy. As digital content creation evolves into a mainstream commercial enterprise, influencers and online creators are increasingly trademarking logos, catchphrases, and video formats to safeguard their brand identities and revenue streams. Youtubers Mr.Beast’s famous lightning-charged panther logo exemplifies how online creators secure legal exclusivity through registration of word and device marks, ensuring their content and merchandise retain commercial distinctiveness across platforms. Similarly, PewDiePie whose branding is characterized by a bold, playful logo featuring his iconic ‘brofist’ gesture, trademarked the "brofist" logo and stylised visuals, demonstrating the growing importance of device marks in online brand building. However, Indian creators may struggle to register such marks under Sections 9 and 11 of the Trade Marks Act, which require distinctiveness and non-descriptiveness. Without long-term, consistent use or a clear secondary meaning, logos or slogans tied to personal branding might not qualify. As influencer commerce grows, clearer standards are needed to support such registrations in India.

Current Legal Framework: Protecting Sounds, Smells, and Shapes in India

The Trade Marks Act of 1999 in India permits the registration of trademarks that can be used to differentiate products or services, including non-traditional marks. However, the registration process for non-visual trademarks, such sounds and odours, is restricted by the law’s demand for graphical representation. According to the Trade markings Rules of 2017, sound markings that are represented by a sound file may be registered; however, other non-traditional marks, such as odours, are not covered by the rules. There is a significant gap in the protection of sensory branding, especially for registering smell and other non-visual marks, due to a lack of regulatory or technological mechanisms. This restriction frequently compels businesses to seek protection in countries like the US, UK, and the EU that have more advanced non-traditional mark laws.

While there have been some developments, such as the acceptance of sound mark applications and changes to procedural rules, the Indian framework remains cautious, with limited mechanisms for registering marks like scents and motions. For instance, companies like ICICI Bank and Airtel have successfully registered their unique musical jingles, demonstrating India’s advancement in sound mark registration. The 2016 registration of the ICICI Bank jingle, for example, strengthened the recognition of sound marks under India’s intellectual property laws. Despite these improvements, companies still struggle to protect unusual trademarks like smells or animated images, as there is no regulatory or technological framework to allow for such non-visual depictions. This hinders both innovation and brand distinctiveness in rapidly evolving markets like luxury products, hospitality, and retail.

The Global Perspective: Lessons From Other Jurisdictions

The European Union has long been in the forefront of non-traditional trademark protection. Since 2017, the EU Trade Mark Regulation has removed the requirement for graphical representation, meaning any perceptible sign can, in principle, be registered. A wider range of trademarks, such as sounds, scents, and even motion marks frequently used in the technology and animation sectors, is now permitted thanks to this legislation. Prime examples include the MGM sound and Tarzan’s jungle yell, protected as sound marks in the EU. These modifications put the EU in a position to lead the world in IP innovation and are consistent with its progressive views on intellectual property. 

In the United States the court firmly established the protection of colour marks under the Lanham Act in the landmark decisions pertaining to non-traditional trademarks such as the case of Qualitex Co. v. Jacobson Products Co. Companies like T-Mobile and Caterpillar have used colour trademarks to gain a distinct market position, thanks to this historic case that established colour as an essential component of a brand’s identity. Also, the USPTO now recognises a variety of sounds connected to brands, following similar trends in sound marks. Japan has taken another step forward and has also recognized motion marks and hologram marks, and position marks (signs designated at a specific place on a product or packaging) since 2015.

India can take cues from global practice. Following the EU’s lead, removing the graphical representation requirement would ease registration of sensory and motion marks. Courts, as in Qualitex Co. v. Jacobson Products Co., may adopt a broader interpretation of distinctiveness to include colour-based identifiers. Japan’s registry reforms illustrate how recognising motion, position, and hologram marks can help accommodate evolving brand strategies in emerging markets like India.

The Way Forward For India: Embracing Innovation in Intellectual Property

To ensure that India stays competitive in the global marketplace, it must take proactive steps toward reforming its trademark law to better accommodate non-traditional marks. Firstly, an Amendment of the Trade Marks Act is required to relax the graphical representation requirement and allow easier registration of non-traditional trademarks. Creation of such Procedural Mechanisms for Non-Visual Marks to develop guidelines for registering smell, texture, and motion marks, including physical samples or digital representations. A more flexible approach to recognizing secondary meaning for non-traditional marks, particularly in the case of sounds, colours, and shapes. 

Secondly, there is a Need for Judicial Sensitization to Modern Branding, as procedural bottlenecks have hindered the evolution of Indian jurisprudence in treating non-traditional trademarks. Courts have shown institutional conservatism, often demanding high thresholds for distinctiveness and consumer recognition. This has resulted in a lack of legal clarity and judicial willingness to explore evolving forms of branding. Although Indian courts have dealt with numerous cases on deceptive similarity, passing off, and goodwill, they have rarely ventured into a detailed analysis of non-conventional marks. In the Gorbatschow Wodka bottle case, for instance, the focus remained on visual similarity in shape rather than engaging with broader sensory elements. Even in comparative jurisprudence, such as in Sieckmann v. Deutsches Patent-und Markenamt, from the European Union, olfactory marks were treated narrowly and tested through conventional functionality and representation filters. Indian courts may take guidance from such precedents to consider whether existing legal tests, such as functionality, distinctiveness, and secondary meaning, can be interpreted more flexibly to accommodate new types of trademarks or whether legislative intervention is necessary.

Conclusion

As brands increasingly rely on sensory, digital, and dynamic forms of identity, trademark law must evolve to keep pace. Even while India has begun to accept some non-traditional marks, its legal and administrative framework is still somewhat restrictive, particularly in contrast to more flexible international norms. In order to be competitive and prepared for the future, India must modify its trademark laws by lowering the criteria for graphical representation, creating more transparent processes for non-visual marks, and encouraging judges to be receptive to contemporary branding tactics. These actions can contribute to the development of an intellectual property framework that is more innovative, responsive, and inclusive.