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Sample Solution

unique sound or combination of sounds or a signature sound, is one of the most powerful marketing tools. Catchy jingles are a brilliant way to ensure the consumer associates the product or brand with said jingle, i.e. sound mark. However, due to the use of the words ‘capable of being graphically represented’, sound marks are often not easy to get registered. Due to the inclusion of digital form in graphical representation, registration of sound marks is now relatively easier. Earlier, when graphical representation was limited to pen and paper format only, it was thought that an apparent solution would be to deposit a digital recording of the sound with the registrar. But this proposition was rejected by the International Trademark Association (INTA) as being impracticable, for firstly, sound cannot be published by the Trademark Registry and people would have to go to the registry to hear it, and secondly, it would be difficult for the registry to store so many sound samples. But these problems seemed to have been tackled by not only the new Trade Mark Rules of 2017, but also by general technological advancements. With access to the internet and unlimited cloud storage, the INTA’s apprehensions stand redundant. The first ever sound mark to get registered was way back in 1950 when the United States Patent and Trademark Office (USPTO) recognised NBC’s infamous three chimes as a trade mark capable of being registered. Over the years, a lot of sound marks have been registered all over the world, for instance, Metro Goldwyn-Mayer’s iconic lion roar, 20th Century Fox’s chime, Tarzan’s yell, Intel’s jingle, default ring-tone of a Nokia mobile phone and many more. In India the first ever sound mark was granted to Yahoo! Inc. in 2008 for a man’s voice yodelling yahoo. ICICI Bank was the first Indian entity to obtain sound track registration with the Indian Trade Mark Registry.

Colour Mark

Colour marks are those marks where a distinct colour or combination of colours is associated with a product or brand and takes us to the original source. Although graphical representation may not be a hurdle for colour marks, they are not easily granted. Section 10 of Trade Marks Act, 1999 talks about registration of a colour combination but only when such colour combination is present in an otherwise traditional logo or mark so that the colour is secondary and the design of the mark is the primary thing to get registered as a trade mark. Essentially the Act can protect a certain mark in a certain colour combination but not the colour itself. However, the Act doesn’t exclude colours and colour combinations from the purview of the definition of trade mark either. Another obstacle faced is the Functionality Doctrine. Its says that a colour cannot be a trademark if the colour is functional in nature. Under this ‘functionality doctrine’, if the feature of the product for which protection is sought is useful or affects the cost or the quality of the article, such that granting trademark protection to the feature would put competitors at a significant disadvantage, the feature is not entitled to trademark protection. For example, a court held that the colour black when used on outboard boat motors serves a functional purpose, since the colour black is compatible with all other boat colours and also because the colour black makes the motor appear smaller. The first successful case of colour trademark was in the US. In Qualitex Co. v Jacobson Products Compan