In the present day, more and more variety of trademarks are coming up as an interesting and dynamic sub-field of intellectual property law, defying conventional definitions of trademarks. Earlier, when awareness about trademark rights and registrability was limited in India, people seeking to register a trademark typically focused only on words, logos, or symbols that helped distinguish their products from others—primarily to prevent consumer confusion. However, over time, as legal and commercial developments progressed, more individuals and businesses began to seek protection for their names and products under trademark law.

Despite this growing interest, trademarks remained limited to conventional forms like words, logos, and symbols, which led to increased confusion and conflicts. As a result, more disputes arose and courts saw a surge in trademark infringement suits. In response to these challenges, the scope of trademarks expanded to include unconventional forms such as sounds, smells, shapes, tastes, motion, colors and texture. Some countries like the United States and those in the European Union region seem to have embraced the subject while countries like India have taken it with a pinch of salt. This article analyses the current global and Indian legal regulation of unconventional trademarks and their impact on Intellectual Property Rights.

An important concept that should be defined is unconventional trademarks, which means unconventional signs used to indicate the origin of the product, symbols that go beyond such conventional elements as visual and or even textual. These includes shapes, colours, smells, tastes, touched, motions and holograms.

Shape Trademarks: Product designs and packaging shapes can acquire trademark protection if they have acquired distinctiveness. A prime example is zippo lighter which is a 3D dimension shape lighter that has acquired shape trademark registration in India.

Sound Marks: A sound can be trademarked when it serves as a unique identifier. For instance, the iconic Intel chime (US Serial Number 75332744) and the MGM lion's roar (Registration No. TMA828890 in Canada and US Serial Number 73553567), McDonald’s ‘I’m loving it’ (Application No. 003661907 in EU), are some legally protected as sound marks.

Olfactory (Odor, scent and smell) Trademarks: Although rare, certain scents have secured trademark protection, such as in European case Vennootschap onder Firma Senta Aromatic Marketing, the smell of fresh-cut grass for tennis balls was given trade mark protection. In the UK, the first smell trade mark was granted in Japan’s Sumitomo Rubber Co. where they successfully trademarked “a floral fragrance or smell reminiscent of roses as applied to tyres.” In India, however, no applications for smell marks have been filed to date.

Color Trademarks: Single color or combinations of colors can be trademarks if they uniquely identify a brand. The purple hue of Cadbury chocolates (Application no. 3019362) and Nykaa logo pink colour (Application no 3915178) are protected under this category in India.

Motion Trademarks: They are unconventional visual marks, like the opening motion of a Lamborghini’s scissor doors or the iconic lamp animation in Pixar’s logo, got registration under motion trademarks.

Texture Trademarks: Texture marks are trademarks that convey the tactile feel of a product through touch. Among unconventional trademarks, texture marks are the least commonly encountered.

Taste Trademarks: The field of unconventional trademarks also delves into tastes. Till date, no taste marks have been successfully registered worldwide. However, notable attempts to secure registration were made with the European Union Intellectual Property Office (EUIPO) and the United States Patent and Trademark Office (USPTO), but both applications were ultimately denied.

So far, no applications for registering taste marks have been filed before the Indian Trademark Registry.

Unconventional Trademarks in the United States

Color as a Trademark: Qualitex Co. v. Jacobson Products Co., Inc.

In the landmark case of Qualitex Co. v. Jacobson Products Co., Inc ., the US Supreme Court ruled that a color could serve as a trademark if it meets the fundamental requirements of distinctiveness and non-functionality. The Court also held that there is no per se rule against using color as a trademark, provided it has acquired distinctiveness and does not serve a functional purpose. This decision established that colors could act as source identifiers, provided they meet the legal standards.

Flavor as a Trademark: New York Pizzeria, Inc. v. Ravinder Syal 2014 SCC OnLine Dis Crt US 3

Flavor trademarks face significant challenges due to their inherent functionality and the difficulty in achieving distinctiveness. In New York Pizzeria, Inc. v. Ravinder Syal , the Court highlighted that flavors are generally viewed as characteristics of goods, not as source identifiers. The functionality doctrine poses a substantial barrier, as demonstrated in re NV Organon, where a pharmaceutical company’s attempt to trademark the orange flavor of its pills was rejected. The Court reasoned that the flavor performed a utilitarian function—masking the unpleasant taste of medicine—and therefore could not be monopolized.

This jurisprudence illustrates the complexities surrounding flavor trademarks, where the utilitarian and sensory nature of flavors often precludes their registration.

Unconventional Trademarks in the European Union

Olfactory (odor, smell or scent) as a Trademark: Sieckmann v. Deutsches Patent- und Markenamt

In the seminal case of Sieckmann v. Deutsches Patent-und Markenamt, the European Court of Justice (ECJ) addressed the registrability of olfactory marks. The applicant wanted to trademark the smell “balsamic fruity with a slight Cinnamon feel. On the same note, it stated that although olfactory signs may be used as trademarks, they had to conform to the graphic representation. The Court underlined that such representation has to be accurate, unambiguous, comprehensive, accessible, comprehensible, embodied in a medium which is long-lasting, and impartial.

The judgment laid emphasis on some general problems associated with the graphical representation of smells while laying down the criterion for their registration.

Sound as a Trademark: Shield Mark BV v. Kist

In the case of Shield Mark BV v. Kist, the ECJ looked at the registration of sound marks under the Article 2 of the Trade Mark Directive. The Court decided that sound could constitute a trademark, if it could be visually depicted and differentiate a trader from the others. The Court then ruled that where a description in words was considered inadequate, a representation by means of signs in a musical notation, which included the stave with clefs and the notes, would suffice as graphical representation. This decision provided clarity on the registrability of sound marks.

Color as a Trademark: Libertel Groep BV v. Benelux-Merkenbureau

In Libertel Groep BV v. Benelux-Merkenbureau, the ECJ addressed the registrability of color trademarks. The Court held that a color per se could constitute a trademark if it satisfied the criteria of being a sign, capable of graphical representation, and capable of distinguishing goods or services.

This principle was reaffirmed in Heidelberger Bauchemie GmbH, where the Court clarified that abstract color combinations could be registered, provided they were clearly defined and met the requirements of Article 2 of the Directive.

Part II of the article will explore Unconventional trademarks in India.

About the authors: Bitika Sharma is a Senior Partner and Nandini Choudhary is an Associate at Singh and Singh Law Firm LLP.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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