ctual Property is the oil of the 21st Century” – Mark Getty. This statement holds true in today’s day and age. Intellectual Property is gaining importance at an exponential rate as the days go by. Today, intellectual property laws offer immense protection to the owners and their rights over such properties, in turn enabling them to commercialise such creations of their minds. Furthermore, some of the biggest businesses in the world, including the likes of Apple Inc. rely heavily on the protection offered by Intellectual Property Right Laws. However, there seems to be a lacuna as far as protection to non-conventional forms of intellectual property is concerned. This article sums the status of non-conventional trade marks in India and other jurisdictions.

Non-Conventional Trade Marks and Graphical Representation

Section 2(1)(zb) of the Trade Marks Act, 1999 defines trade mark as “a mark capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and may include shape of goods, their packaging and combination of colours.”

Non-conventional trade marks have become the concern of creators fairly recently with the growth in use of innovative marketing and branding strategies. Non-conventional trade marks are those which are beyond the purview of the definition given in the legislation and originate from sounds, smells, tastes, textures, etc. While the legislation doesn’t explicitly exclude such trade marks, the use of the words “capable of being represented graphically” restricts the scope of the definition.

Earlier, in accordance with Rule 2(1)(k) of the Trade Mark Rules, 2002, ‘graphical representation’ simply meant representation in paper form. However, the latest Rule 2(1)(k) of the Trade Marks Rules, 2017 defines ‘graphical representation’ as representation of a trade mark for goods or services represented or capable of being represented in paper form and includes representation in digitised form. With the inclusion of representation in digitised form, the scope of the term ‘capable of being graphically represented’ has widened considerably. This amendment is a ray of hope for proprietors of non-conventional trade marks like odour marks or motion marks which are not capable of being graphically represented in the traditional sense.

The term ‘digitised form’ has a wide scope for interpretation and may be used by proprietors to their advantage. ‘Digitised form’ could be interpreted to mean a digital version of a graphical representation, say an illustration in a pen-paper format or it could even mean digital data like audio clips or mp3 recordings in case of sou