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Any symbol or mark used to differentiate one person’s products and services from those of another, or to identify the origin of such goods and services, is referred to as a trademark. However, it is widely assumed that a trademark exclusively pertains to words, symbols, or emblems. This perception is only partially correct, as words, symbols, and logos are not the only markings that may be used as a trademark for a company. Other types of marks, such as sound, taste, smell, texture, motion, and shape, can now be registered thanks to advancements in intellectual property law.

These changes have taken several forms, the most notable of which is the international Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which establishes definitions and minimum criteria for intellectual property rights, including trademarks.

Non-conventional trademarks are defined as any mark that does not fit into the usual realm of being a word, symbol, or logo, and is capable of being recognized and identified only by the human eye. There are visible non-conventional trademarks such as color, form, motion, and others, as well as non-visual trademarks such as smell, taste, texture, and sound. The unusual triangular form of Toblerone chocolates, which has been recognized in the EU, is an example of a non-conventional visual mark, whereas the Nokia sound mark is an example of a non-visual mark.

Graphical representation of mark for registration

The ability to display any sort of mark in a graphical style is a necessary component of having it registered. This entails being able to write it down on ‘paper’ and preserving and publishing a copy of it in the Trademark Registry.

Types of non-conventional marks

• Color marks

Colors are one of the first things that people notice, therefore it’s best to take advantage of this first impression while developing a company’s brand. A colour mark is a mark that uses at least one colour to create a distinguishing identity in connection to products or services. Color markings can be registered as either a single colour or a mixture of colours. In contrast to traditional trademark registration, a colour mark can only be registered if it has already gained distinctiveness as a result of its usage in commerce, i.e. the colour is sufficient to identify the source of the products and services.

The European Court of Justice (ECJ) previously stated that identifying goods only based on colour is unusual. In this case, granting trademarks for specific colours would be anti-competitive due to the restricted amount of base colours available. That isn’t to say that trademarks for specific colours aren’t awarded – for example, Louboutin, a footwear company, is recognized for its distinctive vivid red sole. Cadbury, on the other hand, has lost its colour trademark for the purple that adorns its chocolate packaging in the United Kingdom.

One of the reasons the UK Court took such action was to prevent one company from having a permanent monopoly on a certain colour. Even in India, the Delhi High Court denied Louboutin’s trademark rights to the red colour for the same reasons as the UK Court, refusing to award a single colour trademark.

• Sound marks

As the name implies, a sounds mark is a form of the mark in which a sound is utilized as a trademark. Sound has become increasingly important in identifying a business, thanks to the rise of social media platforms that use audio features such as TikTok, Instagram Reels, and others. Any sound mark must usually meet two conditions to be registered –

The sound mark must be included in the trademark application, and a graphical representation of it must be produced in the form of musical notations, or the sound must be able to be represented on paper, if feasible.

For example, the MGM Lion’s roar, which cannot be expressed musically, might be characterized as “a lion’s roar.” Yahoo’s yodel was the first sound mark to be registered in India. Other well-known sound marks include the Looney Tunes Theme Song, Raymond: the Complete Man’s well-known sequence, Britannia’s four-note bell sound, and so on.

However, not all sound markings are registrable; if the sound mark isn’t unique enough, registration may be rejected. For example, in 2013, Anheuser-Busch InBev, a beer business, sought for the registration of a sound mark consisting of “Two clicking noises at intervals” intended to imitate the sound of a beer can opening.

• 3D marks/ shape marks

A 3D mark can be applied when a specific product can be identified based on its shape and/or packaging. Although there are various elements to examine when evaluating applications for 3D marks, the most important aspect is whether the form of packaging has become necessary to the product’s identification.

The Singapore Intellectual Property Office refused registration to ‘Ferrero Rocher’ for its well-known chocolate coated balls wrapped in golden paper in 2019, claiming that the packaging was not distinguishable without the sticker bearing its work mark.

Other well-known 3D marks include Kit-Kats chocolates with wedges, and the shape of a Coca-Cola bottle, Zippo lighters.

• Smell marks

The scent of freshly ground coffee upon walking into a coffee shop, or the petrichor after the first rain of the year, are both enough to bring back memories and transfer you to a new location. The sense of smell in humans is highly powerful and capable of being recorded in human memory; it can elicit emotions and influence a consumer’s attitude toward a product.

Unlike other non-traditional markings, even though scent marks are theoretically permissible, just a few have been registered yet.

Ralf Sieckmann, a German patent attorney, applied a scent mark for the chemical methyl cinnamate in the case Ralf Sieckmann v. Deutsche Patent and Markenamt. He attempted to describe the aroma using its chemical formula, describing it as “balsamic all fruity with a little tinge of cinnamon.” The German Trademark Office and the European Court of Justice both rejected the scent’s trademark application, claiming that a chemical formula was insufficient to infer any fragrance. Furthermore, the fragrance must be represented clearly and exactly.

Conclusion

Non-conventional marks remain a modern idea, and while there are hurdles to their registration, these should not be used as a deterrent to applying for non-conventional marks. These roadblocks, on the other hand, are evidence of the evolution of Intellectual Property law and should be viewed as stepping stones toward the adoption of new means of differentiating one’s firm.

For years, Muds Management has advised and assisted the customers in registering their trademarks in record time. So, to protect and expand your business, get your trademarks registered now!

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A trademark is a symbol that distinguishes the commercial origin of a product or service. In the music and film industries, trademarks have become profitable.
The entertainment industry’s two main industries – music and cinema – are the world’s rising large marketplaces, with significant revenues. When a legal issue arises, the protection of commercial rights and interest in a song or picture title is critical.

The paradigm shift around intellectual property concerns plays a key part in numerous trademark difficulties, such as deceptively similar song/film names, illegal use of film titles falling under the purview of trademark infringement, and passing off remedies. This study examines the possible applicability of Indian and US trademark law to the music and film industries, with an emphasis on current legal concerns.

A trademark, sometimes known as a service mark, is a symbol that differentiates one company’s goods and services from those of another. A band’s name is its brand in the music industry, and as such, it can be protected as a service mark. The Grateful Dead, Aerosmith, and REM are just a few examples of bands having trademarks. Bands can also file trademarks for their records, t-shirts, and any other goods they create. A trademark gives a band the exclusive right to use its name and entertainment services, as well as more control over its image. Obtaining a trademark can assist in securing new revenue streams through licensing and merchandising agreements.

A trademark gives a band the exclusive right to use its name and entertainment services, as well as more control over its image. Obtaining a trademark can assist in securing new revenue streams through licensing and merchandising agreements. Song titles are not usually eligible for trademark protection, although they may be if they are linked with merchandise or if they are part of a series of works. The Slants, an Asian-American rock band with an unusual name, have won a major win in the Federal Circuit Court of Appeals.

What is the role of Trademark registration in the entertainment industry?

• The entertainment sector has been compelled to pick trademark protection due to an increase in trademark infringement. Because it is important in protecting intangible assets such as song titles, movie titles, motion pictures, and brand names, it gives creators peace of mind.
• In the entertainment sector, the value of a trademark cannot be overstated. The band name or artist name is the most significant quality since it gives the original author a distinct identity. The artist’s name is an uncommon kind of identification, and it is the sole thing that characterizes an artist in the minds of the public.
• Such registration is invalid; nevertheless, in the event of an official disagreement, the court may allow the applicant to submit the same. Motion picture tiles are protected by Trademark Class 41 of the fourth schedule of the Trademark Rule, 2001, which mandates that services defined as entertainment be covered.
• When an artist or band associates a song with a certain brand name or a song title, that artist or band gains original value.
• Various organizations, such as the Association of Television Programs and Motion Pictures or any Indian motion picture producer’s alliance, give reasonable protection to film titles against infringement under the Infringement Act through registration.
• There is no doubt that trademark registration is critical for musicians and filmmakers in the entertainment sector.

Trademark law in the film and music industry

The titles of albums, movies, songs, and other works can be protected under the Trademark Law in certain circumstances. The title and name should be unique and creative. Common or descriptive titles are unlikely to be protected. Another need is that they must have acquired secondary significance. In the case of film names or titles, a single film’s title cannot be patented since it is an unaltered and restricted work, but a series’ title, such as Money Heist, can be.

Under the worldwide universal categorization criteria, they can be registered under Trademark Class 41, which includes “Entertainment,” and Trademark Class 9, which includes “Apparatus for recording, reproduction, or transmission of pictures or sounds.”

Protection of Trademark to Motion Picture Titles in India

• Every year, the Indian entertainment business earns a large amount of cash by releasing a large number of films around the country. Bollywood is the largest contributor to the entertainment industry, releasing more films each year than its international competitors.
• In 2001, India’s entertainment business was given the status of the industry, and it has seen tremendous progress in terms of legitimacy and growth since then. Increased recognition has assisted them in retaining the backing of international investors and players like 20th Century Fox, Warner Brothers, and others.
• The transformation is remarkable, but the industry’s rapid expansion has pushed it into an area where its survival is in jeopardy due to rising IP issues and infringement actions. Piracy has grown as a result of a lack of appropriate security, and it has now become a major disincentive to the film industry.
• Trademark registration in the entertainment industry, on the other hand, can assist filmmakers in fending off such attacks.

Protection of Song Title – Trademark Registration in Entertainment Industry

• Copyright protection is only available to a song’s producer if the song’s title is an integral component of the work. Because a song’s title is linked to the original work, it may be protected under the Trademark Act of 1999. Songwriters in India still utilize trademark or copyright registration on a limited basis.
• The application was denied, and Sony Music Entertainment was unable to obtain the necessary protection. Trademark protection under Trademark Classes 9 and 41 gives the film title legal protection as well as advantages from the production of cassettes and compact discs, among other things.
• There is a flutter on which the law needs to explain since there is little clarity on song title protection.
• Another difficulty with the protection is that if the trademark is not used for 5 years, it will lose its validity.

What is the Purpose of Trade Dress Protection in India?

Trade dress is a subset of trademark law that refers to a product’s or service’s entire “look and feel.” Clients can identify the product’s source or origin based on the final representation and look of the product or service. The Trademarks Act of 1999[1] aligned Indian trademark law with international norms. The revised Trade Mark Act, 1999 extended the scope of the Trademark definition to include all components of Trade dress as stated under the Lanham Act, even though it does not offer a distinct definition of Trade dress.

Defending Fictional Characters and Film Titles

Titles of fictitious characters can be registered as trademarks if they are also the names of movies or television shows. Trademarks such as Sherlock Holmes, James Bond, Harry Potter, and others are all registered. As a result, character commercialization needs a Trademark owner’s permission.

In India, the Film & Television Producers’ Guild of India (FTPGI), IMPPA (Indian Motion Pictures Producers Association), and WIFPA (Western India Film Producers’ Association) are all frequent places to register film titles. A thorough check is carried out among these businesses to discover if a title is identical or deceptively similar to one of the registered. Registration of film titles or names with such agencies merely establishes primacy in using the title and has no bearing on judicial actions.

Conclusion

Analyzing the aforementioned judgments opens up a new dimension by providing a fresh interpretation of the Trademarks Act, 1999. The Indian judiciary should better equip itself to cope with concerns relating to the entertainment sector and trademark protection, as well as give suitable solutions to the problems. Similarly, the producer’s lack of creativity in naming a film also applies to song titles and lyrics.

This should be avoided, and a proper balance should be given to musicians and filmmakers who want to protect their work as a trademark, because any new concept or idea for a song or a film is immediately associated in the minds of the audience, and trademarks play a key role in brand building business on developing instruments and sound systems by bringing music closer.

Trademark registration is very important in the entertainment sector since it protects expensive film productions and music recordings. The Trademark Act of 1999, which is on par with international trademark laws, is applied less generously in the entertainment sector. In terms of movie or picture names, as well as song titles, uniqueness should be encouraged, with no space for duplicity. As a vehicle for brand building, trademarks should be properly protected.

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