Walmart proposal

n 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 sound marks. Allowing trade marks to be digitally recorded is a hugely progressive step for non-conventional trade marks and their registration.

Types of Non-Conventional Trade Marks

Sound Mark

Sound marks are a type of non-conventional trade mark wherein the distinctive sound or audio is an indication of the origin of the mark. Today a 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 mo

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