Think of the distinctive Airtel jingle. Or the iconic, red-soled shoe crafted by Christian Louboutin. Or even the familiar whiff of popcorn that greets you at a movie theatre. These are not just products or advertisements; they are experiences. In the modern marketplace, brands are no longer confined to logos, slogans, and names. Instead, they are increasingly defined by multi-sensory identifiers that engage sight, sound, and even smell.
This new category of identifiers—known as non-traditional trademarks (NTMs)—includes protection for sounds, colors, shapes, scents, and more. Globally, NTMs are becoming powerful tools for brand differentiation. But how far has India progressed in recognizing and protecting them?
Legal Framework in India
India’s recognition of NTMs stems from a relatively broad statutory definition of trademarks.
- Section 2(zb) of the Trademarks Act, 1999 defines a trademark to include:
- The shape of goods,
- Packaging, and
- Combination of colors.
- Trademarks Rules, 2017 (Rule 26(5)): Introduced specific provisions for sound marks, requiring submission in MP3 format (up to 30 seconds) accompanied by graphical musical notations.
- Draft Manual of Trademarks, 2015: Discusses the possibility of smell marks, though India lacks a practical registration mechanism.
This legal framework shows that India has cautiously opened the door to NTMs, but practical recognition and enforcement remain limited.
This blog is a part of our The Ultimate Guide to Intellectual Property Law – ATB Legal blogpost.
Color Marks in India
Color marks are one of the oldest forms of NTMs globally, but in India, their recognition remains conservative.
- Single Colors: Registration is extremely difficult unless the applicant can demonstrate long-term use and acquired distinctiveness. For example, Cadbury’s purple has seen significant litigation worldwide, including India, with mixed success.
- Combination of Colors: More acceptable if the combination itself creates a unique brand association. Examples include specific packaging designs or dual-tone branding.
Case Examples:
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- Christian Louboutin SAS v. Nakul Bajaj & Ors. (2018): The Delhi High Court acknowledged the red sole as distinctive, though protection was limited to situations where the red sole was used in conjunction with the Louboutin brand. The case highlighted how courts scrutinize functionality and distinctiveness.
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- Cadbury Purple: Cadbury’s attempt to register its signature purple shade faced challenges in proving acquired distinctiveness, illustrating the hurdles for single-color marks in India
Sound Marks in India
Sound marks have seen greater acceptance in India compared to color marks.
- Yahoo! Yodel: The first recognized sound mark in India.
- ICICI Bank Jingle and the Airtel Tune followed, marking the early acceptance of auditory branding.
Key Requirement:
Distinctiveness is the crux consumers must associate the sound with a single source. Filing requires both an audio (MP3) file and graphical notation, ensuring examiners can properly evaluate the mark.
Smell Marks in India
Smell marks are aspirational but practically uncharted territory in India.
Challenges:
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- Graphical Representation: Indian law requires a “graphical representation” of the mark, which is nearly impossible for scents. Unlike colors (Pantone codes) or sounds (notations), smells lack universally accepted descriptors.
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- Subjectivity: Consumers may perceive smells differently, complicating enforcement.
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- EU: Recognized the smell of “fresh-cut grass” for tennis balls (before the Sieckmann case tightened requirements).
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- US: More liberal—has allowed registration of the scent of bubble gum for footwear and plumeria blossom for sewing thread.
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- India: No registrations yet, though discussions in the Draft Manual suggest future openness.
India’s cautious stance contrasts with other jurisdictions:
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- United States: Very progressive, recognizing a broad range of NTMs—color, sound, smell, and even taste (though rare).
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- European Union: Post-Sieckmann case, NTMs are permitted but require precise representation (graphical or otherwise).
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- India: Currently allows shape, color combinations, and sound marks, but has yet to embrace smells or tastes.
Challenges in India
Proving Distinctiveness
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- For colors and sounds, consumers may not easily link the mark to a single brand. Robust evidence is required—surveys, advertising expenditure, and market reports.
Conservatism of the Trademark Office
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- Indian examiners apply stricter scrutiny compared to counterparts in the US or EU, making it difficult to secure NTMs.
Lack of Business Awareness
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- Many Indian companies still focus on logos and word marks, underutilizing NTMs as branding assets.
Enforcement Uncertainty
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- Even if registered, enforcing NTMs (especially color marks) is complex due to overlapping industry practices.
Practical Tips for Businesses
For companies considering NTMs in India, the following steps can increase the chances of success:
- Collect Evidence: Demonstrate consumer association through surveys, sales data, and extensive advertising.
- Precision in Filing: For sound marks, submit both audio files and notations. For color marks, specify exact Pantone codes to avoid ambiguity.
- Long-Term Strategy: NTMs usually require evidence of long and consistent use before they acquire distinctiveness.
Branding in the Age of Experience: Why India Must Embrace NTMs
India has cautiously recognized non-traditional trademarks such as colors and sounds but has not yet made strides in protecting smell and taste marks. As Indian businesses expand into FMCG, luxury goods, entertainment, and e-commerce, embracing NTMs will be essential to stay competitive globally.
For businesses, NTMs are not just about legal protection—they safeguard the emotional connections that consumers form with brands. A tune that triggers nostalgia, a color that conveys exclusivity, or a scent that evokes comfort—these are powerful brand assets that deserve recognition in law.
As India positions itself as a global branding hub, the next frontier in trademark law will undoubtedly involve expanding protection to fully embrace multi-sensory marks.
