The increase in cross border trade and the beckoning of a new global age has significant impacts on both the production as well as the marketing sphere of consumer products. Now more than ever, the uniqueness of a brand affects how profitable it can be in the market and what percentage of the market share it will truly dominate.
The struggle to form an individual identity for a product is the new age marketing race. Consequently, newer forms of advertisements and product placements are being introduced every day.
From the iconic ‘statue of liberty’ logo of Columbia pictures to the rather unusual ‘salt bae’ hand movements; all are trademark forms used to promote an individual or a particular franchise’s products. However, with the growth of a new marketing implement, significant legal consequents and requirements form a part of the registration process.
The actual use of a multimedia mark for a brand or a product is dependent on the individual registration of a trademark, and whether the legislative forums of the jurisdiction in which the individual or brand is filing for matriculation recognizes motion trademarks or not.
The legal diaspora for trademark registrations and even more so for the non-conventional ones involves a lot more than what meets the eye. Accordingly, this feature attempts to discuss the general requirements for motion trademarks, cover the international legal implements, and deliberate upon the Indian Legislative inputs.
Motion Trademarks- The General Contiguities
The procedure to register a motion trademark incorporates many features of the general trademark process. Not unlike two-dimensional trademark registrations, motion trademarks must show distinctiveness and act as an individual source of recognition or use.
A successful registration requires the mark in question to signify an individual connection with the product, one which situates immediate public recognition. Moreover, a successful registration often requires statistical proof or individualistic specimens, used to situate communal identification.
Even though the general requirements for non-conventional and two dimensional trademarks are the same, motion trademarks often go through a higher level of scrutiny and face unique impediments for an actual registration.
The various stages of the process can be better classified into two specific sectors, namely distinctiveness and functionality.
Distinctiveness- A mark or a motion to be registered as an individual trade mark must qualify as a distinctive source of use. The applicant must be able to show that the motion in question, serves to identify a particular good or product.
For instance, Toshiba’s multimedia mark is an example of a series of images which distinctly relate to the company and its goods.The distinctness of a mark is directly proportional to the amount of public recognition it procures.
A motion may qualify as distinct, if the general public identifies it with a specific product or good. Generally, a score amount of evidence is required to prove distinctiveness; however, the proof can come in the form of primary/direct as well as secondary/ indirect data. In addition to distinctiveness three dimensional applications must also qualify a functional requirement of registration.
Functionality- The Utilitarian understanding of functionality holds a particular mark as functional when it has the ability to influence the sale, cost and/ or quality of the good and is an essential factor in qualifying the good’s purpose.
For instance, Lamborghini’s trademark ‘car door’ motion has the ability to influence the brand’s prices, sale numbers and the quality of implements used. However, functionality of a motion also must not put competitors at a disadvantage of not being able to claim general features in a market, such type of a motion is called aesthetically functional, and reduces market equitability. T
rademark functionality converges on a particularly thin line, where proper balance is required for a successful registration. These two general features necessitate most specific requirements for a motion trademark’s registration; however, the specificities of legal pre requisites differ from country to country, with added or reduced elements in each.
International Riders for Motion Trademarks
Brands can appeal to customers in multiple ways, and for an organization to successfully sell its products over a period of time, it must protect all possible marks which attract consumers. The United States recognizes this particular need of commercial organizations and acknowledges trademark registrations for not just two-dimensional marks, but for factors such as motions, colors, sounds and other nontraditional source identifiers as well.
The Lanham Act, is the United States premier trademark statute and describes the multiple acceptable formats for brand recognitions. A bare perusal shows that the act acknowledges all factors which can be identified by the five senses and which can distinguish a particular brand or good, as potential future trademarks.
The United States has allowed colors such as the deep brown of UPS to the scent of Clay-Doh to be registered as individualistic trademarks. The primary focus for a successful registration again is viable distinctiveness and balanced functionality. Much like the United States, the European nations too have gradually allowed non-conventional brand images to be registered as trademarks.
The European Union’s Intellectual Property Office (EUIPO) in October, 2017, updated its regulations and acknowledged motion trademarks by removing the earlier need of “graphical representation.” The motion applications can be presented by a series of video files, and only need to identify a clear or precise subject matter for public recognition.
Most European nations such as the United Kingdom, Germany and France have already updated their regulations and adopted the EU’s recommendations. Toshiba’s motion trademark was the first to be registered in the United Kingdom and many others are expected to follow.
A few Asian nations such as Korea and Japan too recognize motion movements. Sony’s “Make Believe” logo was first registered in South Korea whereas Japan has for quite some time now has allowed “dynamic designs” to be registered as trademarks.
Many countries already have systematic regulations for the new age brand implements; however, India in itself lacks specific recognition and its precepts to deal with trademarks require individual deliberations.
Indian Trademark Legislatives
The Indian Trademark Act, 1999 is the primary legislation for all trademark related matters in the country. The ministry of Commerce and Industry regulates all features that form a part of trademark disputes and more often than not incorporates provisions of ‘passing off’ in its process. Section 2 (1) of the Trademark Act, 1999 specifically defines trademarks.
It includes all brand associations which can be represented graphically and can show individualistic public recognition. Nevertheless, as pervasive and diverse the Indian legislative sphere maybe, the law on motion trademarks is still quite dicey.
The country’s trademark purview earlier did not incorporate motion hallmarks, simply because it required an amalgamation of different media forms. A motion trademark cannot be represented before a registrar in its true nature, and must be expressed as a combination of marks such as sound and movement. For instance, Yahoo’s Yodel is one motion trademark registered in India which incorporates both sound and motion features.
Additionally, apart from a bare mention for sound marks in the 2017 trade mark rules, India does not have a specific regulation which deals with non-conventional symbols. However, this does not mean that the country doesn’t recognize three dimensional trademarks; just that a successful registration is dependent on statutory interpretation. Moreover, India very recently introduced a draft manual which talks of a very broad sector for trademark recognitions, one which also incorporates features such as color, shape, smell etc.
The draft manual pushes further a more equitable space for motion trademarks in the country. The Indian trademark sphere sees a positive change towards incorporating global standards for brand recognitions; however, for the country to truly situate a safe space for consumer brands, it must adopt all equitable international provisions and formulate a legislation which specifically deals with motion trademarks.
The International diaspora for motion trademarks has advanced significantly from its earlier stages. The United States has been the frontrunner in this particular regard, whereas the European nations are catching up as well. India, on the other hand has only very recently introduced the manual which supports multimedia trademarks, and is lacking behind its contemporaries.
The new age of product marketing cannot be done without incorporating multiple media forms of advertising; a two-dimensional campaign often seems grossly inadequate and incomplete. The iconic ‘Statue of liberty’ symbol on all Columbia pictures productions plays a significant role in ushering audiences into theatres, while the Lamborghini mark is what creates the hype around the brand’s vehicles.
If these particular marks were not given substantial protection, the success and sales of these brands will be grossly compromised. Accordingly, it is imperative for Indian legislators to pass, at the least. a rule which deals with all aspects of non-conventional trademarks to support businesses in the sub-continent and eventually protect the country’s economy.
A new age of consumerism and product advertising is afoot, one which has the potential of bolstering economies for years to come, and India’s legislative inadequacies must not hamper its possible commercial and economic success.
(The author is a student at the West Bengal National University of Juridical Sciences)