In India trademark registration has increased since last decade. A trademark is a unique identification of a brand; it can be a single color or combination of colors, logo, name of dishes, etc. Trademark Act, of 1999 comes into the picture after India sign the TRIPS agreement with another member of WTO in 1994. As per TRIPS, a deadline of five years was given to developing nations to comply with the provisions of TRIPS.

With the passing of time, the trademarks have evolved but not the trademark laws of the nation and outside the nation, here the non-conventional trademark comes into the picture. A non-conventional trademark is a category of mark that form an identity and instant connection with the brand by engaging the sense of sound, teats, smell, touch, etc. In today's world, businesses are growing rapidly and as a result, non-conventional trademarks are creating their own area in the present business world.

So, this required registration and protection of such trademarks through lawful legislation. As per the Trademark Act, 1999 and TRIPS, anything can be registered under trademark registration if it is capable of graphical representation. The graphical representation may be a challenge for registration of non-conventional trademarks because, a teats mark or a smell mark is difficult to represent graphically, and cannot be recorded in pen and paper. A particular strategy/technology needs to be advanced to keep records of such trademarks specifically (Smell, Teats, Sound, and Colour). This paper deals with the non-conventional trademark and the challenges of registration of non-conventional trademarks in India.

Background
The history of trademarks dates back thousands of years, with evidence of their use in ancient civilizations. Trademarks have evolved over time from simple marks to protect against counterfeiting to complex legal systems that protect the interests of businesses and consumers in the modern world.

One of the earliest recorded instances of trademarks can be traced back to ancient Egypt, where craftsmen would place their unique marks or symbols on their products to indicate their origin and quality. This helped buyers identify the products they preferred and provided a means for craftsmen to protect their reputations. Similar practices were observed in ancient Rome, where blacksmiths would imprint symbols on their ironworks to distinguish their products from others.

As trade and commerce expanded during the Middle Ages, trademarks began to play a more significant role. European guilds, which were associations of craftsmen and merchants, began using marks to identify the origin and quality of their goods. These marks were registered with the guilds and provided a level of protection against counterfeiting. In the 13th century, King Henry III of England enacted the first known trademark law, the Bread and Beer Act, which required bakers and brewers to use distinctive marks on their products. This law aimed to prevent inferior goods from being sold under false pretenses and established a legal framework for protecting trademarks.

In the 20th century, trademarks became an essential part of business strategy, with companies using trademarks to build brand recognition and establish customer loyalty. The concept of trademark infringement also emerged as businesses sought legal remedies to protect their marks from unauthorized use. In recent years, the digital revolution has brought new challenges and opportunities to the world of trademarks. With the rise of e-commerce and social media, trademarks are now not only associated with physical products but also with online presence and digital branding. This has led to the emergence of new issues such as cybersquatting, domain name disputes, and online infringement, requiring continuous updates to trademark laws and regulations.

What is a non-conventional trademark?

Technically, any novel sort of trademark that does not fit within the pre-existing statutory conventional categories of trademarks is a non-conventional trademark. As a result, the focus is less on what it includes and more on what it excludes from the standard category of things. Visual marks like trade dress, holographic marks, motion marks, colour marks, and non-visual marks like sound, olfactory marks, texture marks, and taste marks are examples of the several sorts of non-conventional trademarks. However, the mark's unconventionality does not grant it any additional rights over those granted to conventional trademarks.

Types of Non- conventional Trademarks

1. Olfactory Trademark
   One of the strongest senses in the human body, smell allows people to recall their prior experiences with ease. Despite the fact that numerous nations now recognize the registration and protection of product smells as trademarks, the registration process is still challenging because it cannot be graphically depicted and requires a superhuman effort to demonstrate how the fragrance differs from the product.
   
   Numerous times, the chemical formula of the drug has been written down to illustrate the smell. However, some businesses successfully passed all the necessary examinations and registered smell as their trademark. For instance, the scent of roses of a UK tire company, and the smell of beer in the dart flights of a London- based company are famous examples of smell trademarks.
    
2. Taste Marks
   When compared to other non-conventional trademarks, the illustration of taste is one of the most demanding and difficult, although some nations have allowed the registration of flavor as a trademark to distinguish goods on the market. Usually, a written description of the taste is included to illustrate the taste mark. The taste mark must, like the smell mark, be different from the fundamental function that the product performs.
    
3. Trademarks for motion/Motion Trademarks
   Only a small number of nations permit the trademark registration of moving images, videos, cinematography, video excerpts from documentaries or other movies, etc. The Microsoft Windows logo, which displays when we start a Windows desktop, Columbia Pictures, 20th Century Fox Movies, and others are well-known motion picture trademarks. Due to the presence of numerous major film studios in India, the registration of motion marks is becoming more and more popular as compared to other non-conventional marks.
    
4. Touch or texture Marks
   Touchmark, also known as texture mark, is the least asserted non-conventional trademark because it is not used as frequently as other trademarks. It is crucial for a touch mark to have a purpose and not just serve as aesthetic packaging for goods or services in order to be registered. Examples of touch as a trademark include the velvet touch on Khvanchkara wine bottles and the leather-like substance on brandy or grappa packaging.
    
5. Holograms Marks
   Hologram marks are non-traditional trademarks that combine colors and images that are only visible from a specific angle. As a result, it is very challenging to depict the trademark on paper because it will not be able to catch all of the mark's motion. Companies mostly employ these types of marks to prevent undesired counterfeit copying of goods and services. One of the most well-known uses of the holographic mark is on the toothpaste produced by Glaxo Groups.
    
6. Color Marks
   Since color is something that is pervasive, the question of what makes color distinctive remains unanswered. The colour trademark is recognized for color combinations, but registration of a single color mark remains ambiguous since it lacks the inherent potential to be unique and because there are numerous shades of a single color. Another issue with registering a single color is that because there are so few colors available, allowing trademark registration for a single color will result in conflicts with competing front-runners and prevent anyone from using the color. The color of Cadbury is royal purple.
    
7. Shape Marks
   The shape of a product can also be protected, just as colors, textures, and other non-traditional trademarks, if the customer associates that specific shape with the product. Shapes are considered marks under the Trade Mark Act of 1999 and the UK Trade Mark Act of 1994. However, because form marks cannot be graphically depicted and are difficult to distinguish from other non-traditional trademarks, registration of them is fraught with difficulties. However, many businesses have been successful in preserving the design of their products, such as the Toblerone chocolate bar, Zippo lighters, Coca-Cola bottles, etc.
    
8. Sound Marks
   Anything that is aural in nature can be a sound mark or an auditory mark. Sound mark is the most protected and registered non-conventional trademark when compared to others, and it is becoming increasingly popular worldwide, notably in the US. The purpose of a sound mark is to assist customers in easily and unmistakably identifying a specific product on the commercial market. Sound markings, in contrast to other non-traditional trademarks, can be graphically represented using a succession of musical notes, with or without the use of words. The sounds of Harley Davidson, Nokia, Tarzan Yell, and other well-known brands are among the oldest and most well-known registered trademarks in this area.
    

Procedures & Registration Requirements

When discussing non-conventional trademarks, it's critical to remember that a mark does not need to be registered in order to qualify as a trademark; rather, registration merely gives a trademark more exclusive rights. The mere fact that the mark is universally and widely recognized by consumers qualifies it as a trademark.

Issues with registering a Non-Conventional Trademark
Non-Conventional trademark registration is currently not in particularly high demand. The foundation for trademark registration is the same for both conventional and non-conventional trademarks, but the requirement to graphically depict the unconventional subject matter of the trademark application differs and adds problems to the procedural framework.

Rule 26(5) Trade Marks Rules, 2017: Sound mark
Due to the fact that neither Indian legislation nor TRIPS makes much statutory mention of these various types of trademarks, more weight is given to the long-standing legal precedents. Only recently has there been a single reference to a sound trademark under Rule 26(5) of the Trade Marks Rules, 2017 which states that "Where an application for the registration of a trademark consists of a sound as a trademark, the reproduction of the same shall be submitted in the MP3 format not exceeding thirty seconds' length recorded on a medium which allows for easy and clearly audible replaying along with a graphical representation of its notations.

The rule for an unconventional trademark in the EU and US
EU perspective on registration of Non-Conventional Trademark
Trademarks and their registration in the United Kingdom and its dependent, the Isle of Mann, are governed by the Trade Marks Act, of 1994, which was passed in response to EU Directive 89/104/EEC. The scent of perfume Chanel No. 5 by the firm Chanel was the first olfactory mark to be claimed under the Act in 1994.

The fragrance, which was to be registered, and the perfume, which was the product, were thought to be identical, hence the scent was not given trademark registration. However, around the same time, the UK Patent Office approved the applications for the beer-scented darts from Unicorn Products and the rose-scented tires from Sumitomo Rubber. In the European Union, graphical representation has always been a key factor in deciding whether to accept or reject any proposal.

In the famous case of Raf Sieckmann v. Deutsches Patent und Markenamt, Mr. Sieckmann submitted an application for the trademarking of a certain perfume on behalf of his company, together with the chemical composition, chemical formula, written description, sample, etc. of the in question scent. However, trademark status was not given since it was determined that the offered graphical representation was insufficient.

US perspective on non-conventional trademark
When opposed to other nations like the EU and India, the US takes a significantly different stance toward atypical trademarks. The Lanham Act lays forth the rules for trademark registration and protection in the US. The ability to be graphically depicted is not required in the country because the Act states that "protection can be granted to any words, symbols, name or any combination if they are used to identify and distinguish goods or services of one from other activity."

To inform other businesses of what has been registered, pictorial representation for trademark registration is used. The Lanham Act's Section 1052 defines trademarks negatively and details the requirements for trademark registration. This legal criterion states that a trademark must meet criteria like non-functionality, distinctiveness, or acquired distinctiveness in order to help consumers distinguish one product from others.

To allow for the registration of non-traditional trademarks like smell, sound, forms, etc., the 1988 Congress purposely kept words like "symbols" and "devices" in the definition of a trademark under Section 15 of the Act. As a result, the registration and protection of sounds and smells are not prohibited by US trademark law. The case of Qualitex Co. v. Jacobson Products and Co.51 demonstrates the Supreme Court's willingness to register unusual trademarks. In this case, the Supreme Court emphasized that a trademark's principal purpose, distinctiveness, rather than its ability to be visually depicted, was what was most important for registration and protection.

Conclusion
Trademarks aid in the establishment of goodwill, brand image, reputation, etc. by assisting consumers in identifying the source of a product. Consumers are also likely to develop brand loyalty as a result of trademarks. As a result, businesses nowadays invest a lot of time, money, and effort into making their products and services stand out from those of rival companies that produce and market comparable commodities.

However, the day when conventional trademarks were the only means of achieving product distinctiveness is long gone. Nowadays, businesses target and make use of every sense a customer could have, including scent, sound, taste, touch, etc. In such a situation, there is a higher likelihood of trademark infringement, passing off, etc., all of which would be bad for business. Unconventional trademarks can be used in this situation.

The idea of unusual markings, however, has not been fully investigated in India, and as a result, there is a paucity of legal jurisprudence in this area. Despite the country's numerous trademark rules and regulations, including the Trade Marks Act of 1999, the Trade Marks Rules of 2017, and the Draft Manual of Trade Marks Practice and Procedure, not all kinds of unusual marks have been sufficiently accepted by the law.