Businesses and consumer behavior worldwide in the present day have evolved rapidly with technological advancements. The marketing, promotional, and branding systems have completely changed in the modern world due to the increase in competition from new startups and the rise in the use of IoT and digital media by consumers. Digital media has played a major role in consumer behavior, contributing to the transition from conventional trademarks to non-conventional trademarks being used by businesses. Non-conventional trademarks are primarily used and adopted by businesses to attract consumers and stand out uniquely in the tough competition in the market.

Non-conventional marks fall under the trademarks branch; however, they go beyond traditional marks, such as words, logos, and symbols, which have been used for centuries. Non-conventional marks include color marks, sound marks, shape marks, motion marks, hologram marks, scent marks, and taste marks.

The transition from traditional marks to non-conventional marks has evolved and can be seen with the growing and changing strategies of branding in response to consumer behavior and technological advancements. Primarily, the main focus was on traditional marks such as Nike's swoosh and McDonald's golden arches. With the increase in globalization and consumer preferences, brands explored other methods for consumer attraction, which made them discover features such as sounds, colors, and shapes that gained popularity and attracted consumers while making the brand unique in its own way, like Harley-Davidson's engine sound and Tiffany's robin-egg blue color becoming iconic.

Yahoo's Soundmark^[1] case was the first-ever soundmark that was registered in India. The case has been discussed in the reading as well, providing insights on the procedural requirements for non-conventional trademarks. As per Rule 26(5) of the Trademarks Rule, 2017^[2], a graphical representation of sound marks through musical notations and the submission of digital sound clips is mandated. The case emphasizes the Indian Trade Mark Registry's evolving transition from the adoption of non-conventional marks from conventional marks. The Yahoo case also sets a precedent for sound marks in India and highlights the growth of recognition of non-conventional trademarks in India.

The Zippo Lighter case highlights and provides information about shape marks. In this case, the Delhi High Court granted an interim stay for the lighter's unique and distinctive shape, which indicates the nation's serious approach to the recognition of non-conventional trademarks. However, the decision lacked a detailed analysis of distinctiveness or functionality, focusing instead on prima facie recognition of the shape's uniqueness. This case has been used by the author in his reading, highlighting the limited precedential value of such judgments and the need for a more robust legal framework for evaluating shape marks. It also reflects the initial steps Indian courts took to recognize non-conventional trademarks while grappling with broader regulatory gaps.

On the international level, we can see cases such as Nestlé v Mars, where Nestlé had applied to trademark the shape of the KITKAT bar, which was challenged on the basis of acquired distinctiveness. The European Court of Justice held that shape marks must independently indicate the origin of goods and meet the high threshold of consumer attraction.

In another case, Dyson Ltd. v Registrar of Trade Marks (UK), the UK courts dismissed the application to trademark a transparent collection bin for vacuum cleaners. The courts emphasized the lack of inherent distinctiveness and functionality issues, holding that the characteristic served a practical purpose rather than differentiating from the origin. This case law in the reading provides an explanation with regard to the cautious approach required when granting trademarks for unconventional marks that might impede competition or monopolize functional features, a principle equally critical for Indian trademark law.

The expansion of trademark laws globally, including in India under the Trade Marks Act of 1999, and increasing judicial recognition of non-conventional marks have encouraged businesses to innovate. These marks also cater to changing consumer preferences, where multi-sensory branding plays a crucial role in creating instant recognition. Additionally, non-conventional trademarks align with modern marketing strategies by being versatile across digital, print, and physical mediums, catering to globalized markets and fostering inclusivity for diverse audiences, such as those with sensory impairments.

When speaking in terms of economics and monetary value, non-conventional marks add on as a valuable asset to the brand with regard to intellectual property. Examples such as Coca-Cola's bottle shape, Toblerone's triangular packaging, and Netflix's "ta-dum" sound underscore the growing importance of protecting these identifiers. As businesses and legal systems continue to adapt to digital transformations, non-conventional trademarks represent the future of innovative and effective brand identity.

Legally, frameworks like the TRIPS Agreement expanded the scope of trademarks to accommodate these innovations, though challenges remain in areas like graphical representation for scents, tastes, and textures. For example, while Rule 26(5) of India's Trade Marks Rules, 2017, clarifies the procedure for sound marks, representation for other non-conventional marks lacks clarity. Shape marks, for instance, cannot be registered if their natural form, substantial value, or technical purpose undermines the trademark's distinctiveness. Businesses are adopting these marks not only to secure exclusivity but also to align with consumer demands for immersive and unique brand experiences, ensuring relevance and competitive advantage in a digitally driven world on the other hand it requires India to focus on the limitations and challenges in the existing law governing trademarks and have a structured approach .As of today, in India the Trademark laws are still bounded to the conventional marks rather than the Non-conventional marks, Since there is an increase in the growth of businesses and new ideas and innovative ways of branding, promotion, and marketing, there is a need for stringent and yet adaptive legal frameworks to govern non-conventional marks while also safeguarding consumer interests and market fairness.

1. Yahoo! Inc., Trade Mark No. 1455907, [2008] Trade Mark Registry (India) ↑

2. Ministry of Commerce & Industry, The Trade Marks Rules, 2017, Notification No. G.S.R. 232(E), Rule 26(5), Gazette of India, Part II, Section 3(i) (Mar. 6, 2017) ↑