Beyond Graphical Representation: Reforming Indian Trademark Law

Trademarks such as taste are often dismissed as functional rather than distinctive, even though in certain contexts they may serve as indicators of commercial origin. Similarly, motion and multimedia marks cannot be adequately captured through static visual representation, and holograms challenge the very premise of two-dimensional depiction. As a result, the law struggles to accommodate forms of branding that have become increasingly prevalent in the digital marketplace.

Indian trademark law has long been anchored in the principle that a mark must be capable of graphical representation. This requirement emerged in an era dominated by paper filings, printed gazettes, and static branding, where visual depiction was essential for legal clarity and administrative efficiency. However, in today’s digital economy—where brands are dynamic, multisensory, and often intangible—this requirement appears increasingly anachronistic.

The recent acceptance for publication of an olfactory mark in In Re: Sumitomo Rubber Industries Ltd. highlights that Indian trademark law is capable of evolution. Yet, this development also reveals a paradox. While smell marks have found recognition, other non-conventional trademarks, such as taste, motion, holograms, and multimedia marks, continue to face exclusion. This inconsistency raises an important question: whether Indian trademark law is genuinely evolving, or merely adapting in fragments while remaining structurally tied to outdated principles.

Section 2(1)(zb): A Progressive Provision Turned Constraint

Section 2(1)(zb) of the Trade Marks Act, 1999 defines a trademark as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others. While this definition was undoubtedly progressive at the time of enactment, its continued reliance on graphical representation has gradually transformed it into a constraint rather than a facilitator.

The difficulty becomes particularly evident in the context of non-conventional trademarks. Marks such as taste are often dismissed as functional rather than distinctive, even though in certain contexts they may serve as indicators of commercial origin. Similarly, motion and multimedia marks cannot be adequately captured through static visual representation, and holograms challenge the very premise of two-dimensional depiction. As a result, the law struggles to accommodate forms of branding that have become increasingly prevalent in the digital marketplace.

The “Sieckmann” Shadow: A Legacy That No Longer Fits

The insistence on graphical representation is historically rooted in the decision of the Court of Justice of the European Union in Ralf Sieckmann v. Deutsches Patent- und Markenamt (C-273/00), where it was held that a trademark must be represented in a manner that is clear, precise, self-contained, easily accessible, intelligible, durable, and objective. These criteria were designed to ensure legal certainty and administrative efficiency, particularly in a paper-based system.

India appears to have absorbed the spirit of the Sieckmann criteria, but has not adapted them to subsequent technological developments. This has led to a doctrinal inconsistency. For instance, India already permits the registration of sound trademarks through the submission of audio files under the Trade Marks Rules, 2017. Such files are inherently digital and do not conform to traditional notions of graphical representation. Yet, similar flexibility is not extended to motion or multimedia marks, despite the availability of equally precise digital formats. This selective application suggests that the issue is not technological feasibility, but rather statutory rigidity.

The European Leap: From Graphical to Technological Neutrality

The European Union addressed these challenges through its 2017 trademark reforms, which removed the requirement for graphical representation and replaced it with a technology-neutral standard. Under this framework, a mark need not be graphically depicted, provided it can be represented in a manner that satisfies the Sieckmann criteria.

This shift reflects a recognition that digital representations can often provide greater precision and objectivity than traditional visual depictions. By allowing formats such as video files for motion marks and other digital representations for complex trademarks, the European Union reoriented its approach from form to substance. The emphasis is no longer on how a mark is drawn, but on how clearly and reliably it can be defined and communicated.

India’s Digital Reality vs. Legal Rigidity

India today operates within a fully digitized trademark ecosystem. Applications are filed electronically, records are maintained in digital databases, and examination processes are increasingly streamlined through technology. The acceptance of audio files for sound marks further demonstrates that the system is capable of accommodating non-graphical forms of representation.

Despite this, the statutory language continues to reflect a pre-digital framework. This creates a fundamental contradiction between the technological capabilities of the system and the legal requirements imposed upon applicants. The law, in effect, treats the digital environment as an extension of paper-based processes, rather than as a distinct paradigm requiring its own regulatory approach.

Structural Problems Behind the Stagnation

The persistence of the graphical representation requirement can be attributed to a combination of statutory inertia, doctrinal conservatism, and policy hesitation. The Trade Marks Act, 1999, has not been substantially updated to reflect the realities of modern branding, resulting in a framework that lags behind technological change. At the same time, examiners often adopt a cautious approach, refraining from expanding the scope of trademark protection in the absence of explicit legislative guidance.

There is also an underlying concern about the potential over-monopolization of sensory elements, particularly in the context of taste and smell marks. However, such concerns are not unique to India and have been addressed in other jurisdictions through rigorous standards of distinctiveness rather than restrictive representation requirements. Retaining a rigid graphical threshold, therefore, does little to resolve these concerns and instead perpetuates unnecessary barriers.

Rethinking the Framework: The Way Forward

India’s trademark framework does not require a complete overhaul, but rather a recalibration. Replacing the requirement of graphical representation with a technology-neutral standard would align the law with contemporary realities while preserving the underlying principles of clarity and certainty. Digital formats such as video files, three-dimensional models, and multimedia representations can serve as effective means of defining trademarks, provided they meet established criteria of precision and objectivity.

Such a shift would also bring India in line with international best practices, enhancing its position in the global intellectual property landscape. Importantly, it would ensure that the law remains responsive to innovation, rather than becoming an impediment to it.

Conclusion

The recognition of an olfactory trademark in 2025 demonstrates that Indian trademark law is capable of evolution. However, isolated advancements cannot compensate for structural limitations embedded within the statutory framework. The continued insistence on graphical representation, once a tool for ensuring clarity, has now become a constraint that hinders the recognition of modern forms of branding.

In an increasingly digital and multisensory marketplace, the law must move beyond the confines of traditional representation. Embracing technological neutrality is not merely a matter of reform, but of necessity. If India is to remain competitive and forward-looking in the field of intellectual property, it must shed its reliance on outdated paradigms and adopt a framework that reflects the realities of the digital age.

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References

1.  Trade Marks Act, 1999 (India).
2. Trade Marks Rules, 2017 (India).
3.  Sieckmann v. Deutsches Patent- und Markenamt (C-273/00), Court of Justice of the European Union.
4. Regulation (EU) 2017/1001 on the European Union Trade Mark.
5. Official website of the Controller General of Patents, Designs and Trade Marks (India).
6. In Re: Sumitomo Rubber Industries Ltd. (India, 2025).