Singapore Treaty Accession as Trademark Reform: What India Must Change to Protect Non-Conventional Trademarks

The Trademarks Act acknowledges the existence of certain types of non-conventional trademarks such as sound marks, shape marks, colour combination marks and others that are not traditional marks but are capable of distinguishing goods and services in the marketplace. This recognition mirrors the evolution of today's brand world and the fact that companies must now build their brand identity through more than just words and logos, but also by using senses and experiences. Even when formally recognized, the protection of the non-conventional trademarks in India is yet limited and inconsistent. The main problem is not that they aren't legally recognized but that they are not actually registrable. Common issues faced by applicants are uncertainty over how non-traditional marks are represented, establishing the distinctiveness of a mark, assessing consumer perception, and the standards used for examination and enforcement actions. As such, the registration and protection of such marks can be dependent on “uneven” business practice by the Administration and case-by-case interpretations by the courts. In this background, the accession to the Singapore Treaty on the Law of Trademarks becomes important. The Treaty aims to modernise and harmonise trademark registration procedures, in order to make these more efficient, technology-driven and user-friendly. It does not impose any substantive requirement for recognition of specific categories of trademarks, but establishes a framework that facilitates the procedural streamlining, digitalisation and uniformity of trademark administration. Accession therefore has the potential to serve as a catalyst for structural reform in India, which may be translated as improvements in the procedures for filing, multi-class applications, recordal, correction mechanism, electronic communication and examination practice. But the difficulties of a treaty accession to address the more fundamental issues of non-conventional trademarks remains an issue. Complementary domestic measures are needed to clarify the standards for graphical and digital representations, create more precise tests for acquired distinctiveness, enhance public notice requirements, and to offer guidelines for detailed examination by trademark officials for the protection to be effective. In addition, the procedures for opposition, infringement and enforcement should be tailored to fit the nature of non-traditional marks. The paper suggests that India does not need to accede to the Singapore Treaty as an international commitment but as a chance for a generalized reform of the trademark laws. International harmonisation and a concerted national effort are the only ways for India to have a clear and effective system of safeguarding non-conventional trademarks in the 21st century.