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Posted By: Smita Choudhary | 08 Feb 2017

Non -Traditional Trademark Part-II

“Simplicity is the trademark of  Genius”-Robin Sharma

Motion service mark consists of the movement of a certain object which is a visually perceivable combination of the object and the movement.  The moving image can be a film-clip, video, moving logo for TV-shows. An example of a motion service mark is a UK mark (UK00002607608) for a 3-D yoga app.

Sound service mark consists of a short extract from a composition or an entire musical piece. In some cases, it may be a reproduction of an everyday sound, perhaps in an unusual circumstance. The famous example of a sound mark is the roar of the MGM’s Lion Leo, Yahoo yodel, and NBC-Entertainment chimes.

Scent or smell mark registration is something where the smell must not result from the nature of the good itself. For example, as per the WIPO magazine, an application by Chanel to register its well-known No. 5 fragrance as a smell mark in the United Kingdom was unsuccessful on that count – the scent of the perfume being the very essence of the product. However, some smell mark descriptions have met the distinctiveness test and been successfully registered, such as a Dutch company’s tennis balls with the scent of newly mown grass; and UK registrations for tires with “a floral fragrance/smell reminiscent of roses” and darts with “the strong smell of bitter beer.”

Taste marks require a written description of the taste and an indication that it concerns a taste mark.  It is challenging for the Examiner to actually distinguish between the flavor of the product and something that is connected to the product and not necessarily its own natural flavor. As per the WIPO magazine, OHIM rejected the pharmaceutical company Eli Lilly’s attempt to register the taste of artificial strawberries noting in its decision in case R 120/2001-2, “Any manufacturer… is entitled to add the flavor of artificial strawberries to those products for the purpose of disguising any unpleasant taste that they might otherwise have or simply for the purpose of making them pleasant to taste… Moreover, the taste is unlikely to be perceived by consumers as a trademark; they are far more likely to assume that it is intended to disguise the unpleasant taste of the product…” A similar attempt by N.V. Organon to register an orange flavor for pharmaceuticals was rejected by the USPTO. As the Trademark Trials and Appeals Court pointed out, it is difficult to define how taste can act as a trademark when consumers only taste goods after purchase.

Touch or Texture both fall under the definition of a “sign.” The “texture” or “touch” mark must be capable of distinguishing the goods or services of one trader from those of another and must be a clear description of the trademark and/or a visual representation of it. For example, the packaging may have some kind of particular sensation to the touch which is distinguishable from others.

Control and Inception Mark are the marks owned by legal persons for the sake of controlling and examining the products or services regarding their source or the elements of composition or the method of production and its quality.

 I will conclude by saying that the Trademarks can act as powerful tools for creating value for your business. They must be used creatively, pro-actively and with imagination. They must be transformed from mere legal concepts and enforceable rights into commercially valuable assets, and that can be achieved primarily by putting them to work as tools for creating and developing a brand value for your business.

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