Kinds of Trademark

In the simplest terms, a trademark is a visual symbol which may be a word, signature, name, device, label, numerals or combinations of colours used by one undertaking on its goods and services or other articles of commerce to distinguish itself from other similar goods and services originating from a different undertaking.

This article enumerates and describes the various types of trademarks recognised in India.

I. Introduction

Trademark basically aids modern businesses in helping the customers identify the goods or services from that particular business/enterprise. In helping the identification of products/services from a particular brand, it also advertises the products/services of the enterprise. A trademark makes use of the goodwill of the brand and communicates its goods/services to as many people as possible. It also prevents customers from getting deceived into buying fake/deceptive products. [1]

In India, the Trademark Act 1999 and the rules notified along with it is the main source of trademark law. Since India is also party to the TRIPS convention, the clauses of the convention also form a major source of the trademark law in India.

The Trademark Act 1999 states that to be eligible to be registered as a trademark, a mark should fulfil the following conditions:

• The selected mark should be capable of being represented graphically
• It should be capable of distinguishing the goods or services of one undertaking from those of others.
• It should be used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without the identity of that person.

II. Types of Trademarks

According to Section 2(1) (zb) of the Trade Marks Act 1999, a “trademark” means “a mark which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others, and may include the shape of goods or their packaging and combinations of colours.”

Based on the above-mentioned definition of a trademark, the following types of trademarks are available in India:

• Product mark

A product mark is basically a type of trademark that helps to identify the products of a particular enterprise. It helps the customer to identify the origin of a particular enterprise and hence helps the product to stand out from a barrage of similar products.

• Service Mark

As the name suggests, a service mark is used to identify the services of a particular enterprise. The owner of the service mark, as the owner of any type of trademark, has the right to exclude others from using his service mark. A service mark essentially helps in the easy identification of services of a particular enterprise.

• Collective Mark

A collective mark is a trademark used by a group of companies. It is registered in the name of the group. This allows a whole group of companies to use a particular mark to promote their products; the only requirement to use a particular collective mark is that you should belong to the particular group.

• Certification Mark

A certification mark is typically used to denote that the goods/services in question are certified to have certain characteristics/properties in terms of quality/quantity/curacy/material used etc. So while a standard trademark will talk about the origin of the product, a certification mark will guarantee the quality of the product. Any product/service is required to meet certain standards before they use such certification mark.

• An Unconventional Mark

A trademark is a designation specifically used to “identify the goods of a person”. To become recognized as a trademark, the designation must identify the source of one seller’s goods and distinguish that source from other sources.

Traditionally, the trademark laws have allowed only numerals, letters, symbols, monograms etc. to be registered. According to the Trademark Act 1999, such trademark should be capable of being represented graphically, that is, the mark should be capable of being put on the register in a physical form and also being published in the journal.

“Conventional” trademarks comprise words or designs protected by the tort of passing-off or by registration in trademark offices. By contrast, “unconventional” marks are elements such as smell, sound, colour, shape, even taste and gesture. Until recently, such things were thought to be unregistrable and largely unprotected in the common law. This position is changing internationally. The smell, sound, colour and even shape marks now appear on many trademarks registries and in trademark legislation and treaties. [2]

An unconventional trademark is typically in the form of sound marks, smell marks, shape marks or colour marks. [3] The new trademark rules, announced in 2017, allow the registration of these unconventional trademarks in India.

• Colour Mark

India follows the colour depletion theory which states that since there are a limited number of colours in the palette, colours cannot be registered as trademarks because a time may come when all the colours would have been monopolized and that would be anti-competitive. However, this issue has now been resolved in India, and single colours can be trademarked too. The Manual of Trademarks, Practice and Procedure, 2015, recognises the registration of single colours. Single colours can be registered on strict evidence of acquired distinctiveness and protection will be granted strictly to the extent of that particular shade of colour.

Single colours not only lack inherent distinctiveness but it becomes very difficult for consumers to identify the source of goods or services just by a single colour. It is simpler for colour combinations as they are likely to be distinctive.

The UAE Trademarks Office accepted and registered for the first time a single colour trademark in the year 2007 for a particular shade of orange used by Mars Incorporated for its Uncle Ben’s range of Rice Products. The blue colour of the Parachute oil bottle was granted protection in India. [4] In the famous Cadbury case [5], Cadbury proved that its distinctive shade of purple (Pantone 2865C) on the wrappers packaging for its milk chocolates had gained a distinctive character and the same was granted protection. [6]

• Sound Mark

Sound marks can be registered in India if the sound mark is distinctive and able to exclusively identify and associate the goods and/or services as originating from a particular enterprise.

“Factual Distinctiveness” of a sound is the prerequisite which needs to be proved to register a sound mark. Here, “Factual Distinctiveness” means the immediate recall value of sound with the product/service. The Trade Marks Rules 2017, further specify that applications for sound marks must be submitted in an MP3 format, not exceeding 30 seconds in length and recorded on a medium allowing easy and clear audible replay. This should also be accompanied by a graphical representation of the notations constituting the sound mark.

In India, the Yahoo yodel was the first sound mark to be granted registration in India, and the corporate jingle of ICICI Bank was the first Indian entity to be granted a sound mark protection.

• Smell

In comparison to other non-conventional trademarks, the numbers of smell marks registered are significantly less. This could be due to the practical difficulties that are involved in the registration of a smell mark. Since odours are highly subjective and physical conditions like temperature, humidity etc. could affect the odour, these practical difficulties further increase. [7]

The first smell mark was registered in the United Kingdom by Sumitomo Rubber for a floral fragrance or smell reminiscent of roses as applied to vehicle tires. Another example of smell mark is of a “vanilla” scent or fragrance when applied to office supplies registered in the US.

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[1]Constance R Lindman, ‘Trademark Boundaries: The Geography of Non-Conventional Marks’ (2017) 20 SMU Sci & Tech L Rev 213.

[2]Dev Gangjee, ‘Non-Conventional Trade Marks in India’ (2010) 22 Nat’l L Sch India Rev 67.

[3]Smriti Ganotra and Abdullah Qazi, ‘Non-Conventional Trademarks’ (2018) 5 Ct Uncourt 27.

[4]2018 (76) PTC168 (Del).

[5]Cadbury UK Limited v. The Comptroller General Of Patents Designs And Trademarks & Société Des Produits Nestlé S.A. (Case No: A3/2016/3082),

[6]Peter Gillies, ‘Colour in Branding – Asserting a Monopoly in a Colour for Marketing Purposes – The Cadbury – Darrell Lea Litigation’ (2009) 12 Int’l Trade & Bus L Rev 253.

[7]Sunil Thacker, ‘Don’t Steal My Smell’ (2014) 1 Ct Uncourt 2.

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