What is a Trademark?

We all recognise the association of the half-bitten black apple with Apple Inc.; the solid sky-blue bird with Twitter; the yellow “M” on the red background with McDonalds; the bright red “NETFLIX” with Netflix; and the words “Prime Video” with an arrow at the bottom with Amazon’s Prime Video. All of these are examples of trademarks we see around us.

“Trademark” as the word suggests is a “mark” associated with/unique to the trade of a corporation. These marks create a familiarity in the viewer’s/customer’s mind with respect to a particular product or a company. Trademarks are an important feature inmarketing, since they help the customer retain memory of the product or the company that is being marketed. The reason for this is that the human brain retains visual and audio cues for a longer duration of time, as compared to words or phrases. Some of the commonly used forms of trademarks are Devices, which include logos, pictures, drawings, or a combination thereof (like the Apple Incorporated’s bitten Apple, and  Twitter’s blue bird); Words (like “Netflix”); Colours (like the glossy violet that is symbolic of Cadbury chocolates); Shapes (like the shape of a Coca-Cola bottle); and Sounds (the conventional Nokia ringtone).

Formal Definition of Trademark

The obvious question that arises as a result of this discussion is, “How do you define a trademark?”

The Trade Marks Act, 19991 (hereinafter referred to as “the Act”), under Section 2(zb) defines a “Trademark” as “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 shape of goods, their packaging and combination of colours.” The Act further broadens the ambit of this definition, by defining “Mark” under Section 2(m) to include “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination hereof”.

These two definitions read together, expand the horizon of trademarks to a large ambit of things.

Characteristics of a Trademark

There are two essential ingredients that a mark must possess, for it to become a trademark. Both of these ingredients can be drawn out from the definition of a trademark under Section 2(zb) of the Act itself. The first essential ingredient of a trademark is its ability for graphical representation. ‘Graphical representation’ has been defined under Section 2(1) (k) of Trademark Rules, 2007 as “the representation of a trademark for goods or services represented or capable of being represented in paper form and include representation in digitized form”. It is important for a trademark to be capable of graphical representation so that it can be put on the trademark register in a physical form and be published by the Registry in the Journal.

The second essential ingredient of a trademark is that it should be capable of distinguishing goods and services of one person from those of others. Meaning thereby, that the use of a mark, which is not capable of distinguishing the goods and services it is used for, from those of others, does not qualify for protection under the Act. It is this characteristic of a trademark that is called its “distinctiveness”. This implies that the mark must have a distinctive character.

In order to obtain a trademark, the Applicant must prove both the afore-mentioned essential features and show that the mark in question is capable of graphical representation as well as, it is distinctive of the good/service to which it pertains. Distinctiveness implies that a customer, when see’s the mark, will immediately know which good/service it refers to.

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