A mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination. Whereas a trade mark means a mark means a mark capable of being represented graphically and which is capable of distinguishing and which is capable of distinguishing the goods or services of one person from those of others. Mark include amongst others things name or word also. If we describe a Trade Mark then a mark used in relation to goods for the purpose of indicating or as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use that mark. The function of a trade mark is to give an indication to the purchaser or a possible purchaser as to the manufacture or quality of the goods, the give an indication to his eye of the trade source from which the goods come, or the trade hand through which they pass on their way to the market.
Unconventional in its meaning itself means “other than ordinary”. Therefore, an unconventional Trade Mark is a mark other than an ordinary Trade Mark. Trade Markcomprises a name, word, phrase, symbol, design, picture, styling or combination of one or more of these elements. An unconventional mark is mainly in the form of sounds, tastes, touches and smell.
The unconventional Trade Markhave acquired recognition due to two factors: 1) international conventions and low literacy areas.
In India the main reason out two can be low literacy among people. Illiterate people relate and recognize good mainly due to its color, shape or combination of colors.
Though unconventional marks have become part of Trade Mark but still there are factors which affect registration. As unconventional Trade Mark are basically color, shape or smell related marks it’s very hard to finalize that whether the registration will result in monopolization of mark or not.
Conditions for the registration of unconventional marks are:
1) These unconventional marks should be inherently distinctive.
2) It should be capable of being graphically represented.
3) It should be capable of distinguishing the good from the other goods.
Some recognized kinds of unconventional marks are:
1) Color marks
2) Shape marks
3) Sound marks
4) Scent marks
5) Moving image
Trade marks act 1999, does not address all these kinds and is silent on this point. But it also does not prohibit the reorganization of all these marks.
But still there is are certain conditions which have to be fulfilled before any unconventional mark in form of sound, smell, shape, color or image get registered.