About the Author

Archi Bhatia is a law graduate who currently works at a law firm in Delhi. She has interest in Intellectual Property and its confluence with new age technology. She is affiliated with Quick Company, Delhi.

In recent times intriguing types of trademarks are in trend, as with globalisation and increase in cross-border trade, the mark has become a pivotal tool to signify a company’s identity. The companies understand the importance of the internet and social media hence more, and more companies are sprucing up their logo with animation and visual effects.

The contemporary market is involved in the process of inventing new products with sensory and unique experiences for their customers to leave a mark on their customers and develop a distinct and novel reputation and so there has been a steep increase in moving logos being incorporated as a trademark of many companies.

Indian Law and Motion Trademark

Conventional and traditional trademark in the legal sense are devices, logos, and plain words which are used to distinguish one product from that of others. The technological revolution in the marketplace has persuaded companies and individual to produce a mark which is novel and experimental in nature; these strategies have brought a paradigm shift in the branding strategies and have brought revolution in technological sector of the company to aim for better and innovative ideas.

Unconventional marks go beyond the trademark definition which has been mentioned in the trademark act 1996 of Indian law. Many companies are now taking the aid of extreme branding with the help of colour, smell and sometimes even touch.

A motion trademark is a moving logo which is used by the company as an innovative marketing strategy by the companies to attract consumer towards their product. Any motion mark is made by using animation and different computer programs and any moving object which exist around that company.

Registration of Motion Mark as Trademark

Any motion mark should have the capability of depicting itself on paper while applying for registration in the intellectual property office of India. Submitting a motion mark involves the same criteria of evaluation as do other forms of trademarks, but motion marks have remained a small fraction of trademark submission in India. While submitting the registration of motion mark the company or individual has to keep in mind that any movement occurring in the mark should be represented in the sequence, it is being presented for the product.

The succession of images in the mark being registered as motion mark is the most critical aspects which may be subject to protection. Presentation of such marks is interpreted liberally by the registrar of the trademark.

Motion Mark Applications Made Till Date

Sony Ericsson submitted a flipbook depicting of up to 20 images which allowed the examiner of the trademark to flick through the pages and see the motion in the pictures. This application was initially rejected by the examiner but was then accepted on appeal.

A well-known example of a motion mark registered is Microsoft windows logo which we see once we open the windows PC or laptop.

Indian Law and Motion Trademark

Until recently, trademark application of motion marks did not fulfil the requirement of graphical representation, and hence, it was quite difficult to register it as a trademark of the company.

The rationale behind rejecting the registration of motion trademark is mostly was its inability to represent itself graphically and even if the trademark is rendered before the registrar graphically. The graphic representation must be clear, precise, self-contained, easily accessible, intelligible, durable and objective.

Section 2(1) (zb) of the Trademark Act, 1999 defines a trademark as a mark which capable of being presented graphically and is capable of distinguishing goods or services of one person from those of others and may include the shape of products, their packaging and combination of colours. Thus, the definition of the trademark under the Indian Trademark Act is an inclusive one and covers within its ambit anything that is capable of being graphically represented and distinguishing any product.

It must be noted that motion mark cannot be presented in its pure form; it will have to be presented before the registrar as a combination of marks for example sound and movement are to be presented together, like in the case of Sony Ericsson and Nokia.

The Indian Trademark Law and Practice have expanded its purview recently to accommodate protection of various and different types of non- traditional.

Concerning registration of an Unconventional trademark, a Draft manual has been developed which mentions that the trademark law is to be interpreted broadly. Draft manual elaborates on the registration and protection of trademark which are not conventional, such as colour trademark, smell trademark, the shape of goods are all protected keeping in mind public interest of the company.

A recent development witnessed in the regime of unconventional marks in India is that the registration of the sound mark by Yahoo for “Yodel”, followed by registration of the sound mark by German Company Allianz Aktiengesellschaft.

At present the Indian Trademark regime is experiencing a considerable transformation wherein new non-conventional marks are being filed more frequently.

The primary considerations for according trademark protection in India are that the mark must be capable of:

1. Being graphically represented; and
2. Distinguishing any product

Thus, the perception in India on the introduction of new non- traditional trademarks can primarily be remarked as positive subject to the statutory laws prevailing in India.

The rationale behind the protection of trademark

There is no doubt that trademark applications for motion marks are increasing all over the world and also in Indian trademark law. For many years India did not allow for motion mark applications, but this was changed with the publication of trademark manual. The benefits of registering motion mark in this technological order are significant.

The limitations of a static trademark are that it only protects single image whereas motion trademark would preserve several images included in the motions.

This method perpetually broadens the ambit of protection and dramatically increases the value of the brand associated with the trademark.

Conclusion

The acceptance of a motion mark is opening up new doors for business. Even though companies have been interacting with their customers using animations for a long time, but the protection of animation can now be protected under Indian Trademark law in the form of a motion mark. Motion mark as a trademark is rarely registered as they have just gained importance with technological advancement in this arena.