Intellectual Property usually refers to creations of the mind, including within its ambit inventions, artistic work, designs, names, symbols, etc. Trademarks are a branch of intellectual property. According to the World Intellectual Property Organisation, a trademark is a sign which facilitates distinguishing goods or services of one enterprise from those of another. Trademarks are of extreme importance; it can even be considered an efficient marketing tool which provides recognition to a brand.

Section 2(1)(zb) of the Trademarks Act, 1999 defines ‘trademark’. It says that it is a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.

Section 2(1)(m) of the Trade Marks Act, 1999 defines ‘Mark’ - this includes a device, brand, heading, label, ticket, name, signature, word, letter, shape of goods, packaging or combination of colours, the numeral shape of goods, packaging or combination of colours or any combination thereof.

According to Article 15 (1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.

Trademarks also help a consumer identify and differentiate between goods and services made available to them. Trademark laws facilitate registration of trademarks which ensures that they cannot be replicated by anyone else. By doing so, consumers are not exposed to a market of ingenuine products. While these definitions mainly deal with traditional and conventional trademarks, there exists another branch of trademarks which are unconventional.

Essentially, unconventional trademarks do not come within the ambit of conventional and traditional trademarks. These trademarks are unusual in nature and therefore are hard to be registered. Main categories of these unconventional trademarks usually take the form of sound, shape, colour and smell marks. Just as conventional trademarks, unconventional marks must also possess the ability to facilitate distinguishment between the goods and services of one from another.

The unique tone and sound of the yell of ‘Tarzan’ a character in a Disney movie is a registered trademark in the United States. Christian Louboutin a renowned fashion brand based in Paris has trademarked their iconic red-lacquered soles, which can be seen in majority of their luxury footwear.  

The Trademark Rules, 2017 contains within it provisions to have sounds registered. This can be done by submitting for registration the sound clip along with notations. Colour Marks may also be registered.

Yahoo was the first entity to get its yodel trademarked in India and ICICI was the first Indian entity to have its jingle registered.

When it comes to unconventional trademarks it doesn't need to be inherently unique and distinguishable. But it must acquire some level of individuality and distinctiveness that enables easy distinguishment. It needs to be proved that this form of unconventional mark invokes identification of the goods and services of a particular brand.