Beyond Visual Marks: The Rise of Non-Traditional Trademarks in the Indian IP Regime

Introduction

United Breweries Limited has secured trademark protection for the distinctive “Oo la la la le o”, a distinctive jingle, associated with Kingfisher beverages. The trademark registry granted the registration to the audio signature as a sound mark with effect from January 31, 2025 and granted the certificate of registration on February 5, 2026, confirming the mark's validity for ten years. These developments come after Indian Hotels Company Limited announced that “Taj” has obtained sonic identity, being the first sound mark granted to a hospitality brand in India. The contemporary era of marketing resonates more with jingles, hues and design than with words or logos. Traditionally India restricted trademarks to visual identifiers such as logos, names, symbols or combinations. However, the rise of sensory marketing has renewed the focus on nontraditional trademarks.

Recent developments reflect more than isolated administrative decisions; they also indicate a shift in the way brand identity is understood within the legal framework. The increase in digitisation and experience-driven economy brands not only compete through visual recognition but through multi-sensory engagement of the consumer. New commercial identifiers such as audio cues, musical signatures and various tonal patterns often function as immediate commercial identifiers triggering association with particular products.

This blog will analyse the structural tension in the Indian trademark regime where statutory doctrines co-exist with developing administrative reforms to include non-traditional trademarks. Further, the blog will examine global developments around nontraditional trademarks, assessing interpretation-driven and statutory reform models. 

Evolution of Non- Traditional Marks In India

The Trademark Act 1999 governs trademarks in India. The act broadly defines the “mark” as “mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof” under section 2(1)(m). In principle, it is inclusive of nontraditional marks, including shapes and sounds. It can potentially be applied to other sensory indicators if they can be distinguished from other goods or services and satisfy the requirements of distinctiveness and graphical representation under statute.

Historically, registration of non-visual trademarks has been restrained by insisting on graphical representation. Graphical representation requirement creates structural difficulty when applied to sensory marks such as sound, as graphical representation is designed for visual symbols rather than sensory symbols. This requirement often focuses on prioritising technical form over substantive distinctiveness, which creates practical accessibility for the protection of non-traditional marks. The introduction of the Trade Marks Rules 2017 created limited procedural advancement by allowing the sound mark registrations. According to Rule 26, Sound marks are to be filled in MP3 format, along with a graphical representation in the form of music notation or description. Despite the development, the framework remains incomplete. The Rules do not include scent, taste or motion marks in any meaningful way. In addition, non-traditional marks such as sound, scent or motion still face practical and doctrinal challenges under the present legal system.

The Statutory Anchor and the Quiet Administrative Shift

Non-traditional trademarks are structurally anchored under Section 2(1)(zb) of the Trade Marks Act, 1999, which defines “trade mark” as a mark capable of being represented graphically and capable of differentiating between goods or services. While the definition is broad enough to cover shapes, sounds, colours, or any other nontraditional marks, the Graphical representation is still imposed as a statutory threshold requirement. Historically, the focus on graphical representation was understood as the ability to depict the mark on paper or in a printed form. Indian law has consistently recognised graphical representation as the principal doctrinal filter through which non-traditional marks must pass. The statutory language does not expressly mention sound, scent or other non-traditional marks, instead their admissibility is derived from an expansive interpretation of the word “mark” combined with the requirements of distinctiveness and graphical distinctiveness. Theoretically, India does not prohibit nontraditional marks; however, their registrability depends on how convincingly the mark can be graphically translated into a suitable form for registration.

The Indian landscape has experienced a quite judicial and administrative shift. In 2008, India’s first sound mark was registered by Yahoo! Inc. for its iconic yodel. The sound mark was accepted in MP3 format with musical notation, marking a significant procedural shift. Further, it was followed by the registration of ICICI Bank's corporate jingle, reinforcing that the auditory distinctiveness can satisfy the statutory requirement when applied properly. The willingness of the registry to accept such marks indicates that the graphical representation is interpreted in a more expansive, technologically adaptive manner. Moreover, in the case of Christian Louboutin SAS v. Nakul Bajaj, the Delhi High Court recognised red sole as a single colour mark with acquired distinctiveness in India. This decision indicated the willingness of the judiciary to move beyond traditional visual marks while still being within the statutory framework.  With the introduction of the Trade Mark Rules, 2017, this silent shift becomes visible. Rules clearly permit the submission of sound marks in MP3 format (Less than 30 seconds) along with musical notations, which are graphically represented. While the act continues to mandate graphical representation, the rules extend this concept to a digitised format. This is not a statutory shift but an administrative shift that reflects technological realities of the contemporary world.

Administrative reform without statutory reform causes tension in the legal system. Graphical representation is mandatory on paper, whereas digitisation and submission using multimedia have broadened what is considered a form of representation in practice. The Indian system of law is operating somewhere in a middle region; that is, it is maintaining textual continuity but creating procedural interpretation. The burdens of digital branding, sense marketing and strategy changes are mirrored in the trademark register and the courts, and the statute remains adherent to the philosophy of graphic representation.

Comparative Approaches: Legislative Reform or Interpretative Adaptation ?

Around the world, two types of reforms are dominant: explicit legislative reform and interpretive reform. The European Union, Singapore and the United States adopt distinct ways to create harmony between traditional doctrines and evolving branding practices.

The European Union (EU) took a systematic and conscious statutory shift. Sieckmann v. Deutsches Patent- und Markenamt imposed strict graphical representation requirements requiring clarity, precision and objectivity. These standards restricted scent and other sensory nontraditional marks. However, with the introduction of the EU Trade Mark Regulation (EUTMR) and Trade Mark Directive, the graphical representation requirement was removed. The shift in framework meant that the mark must be represented in such a way that enables both the authorities, as well as the general people, to perceive exactly the right subject of protection. This rule allowed and enabled registration of sound, multimedia, motion and hologram without its artificial graphical forms. These changes reflect the current technological and business realities, at the same time preserving particularity and utility as key aspects.

Singapore took a more measured initiative for reforms. The Trade Marks (Amendment) Act 2004 was introduced, which effectively removed the statutory requirement of mark to be visually perceptible. This allowed the registration of sound and scent marks. The amendment marked the recognition of nontraditional trademarks by Singapore. Although Singapore allowed registration of nontraditional trademarks, it did not remove the statutory requirement of a graphical representation. Creating a doctrinal tension, as the nature of sensory marks poses significant challenges. It is observed that consumers often fail or struggle to differentiate between various commercial smells, which complicates proving distinctiveness.

On the other hand, the United States follows a more flexible, interpretive model for nontraditional trademarks. The Lanham Act outlines the trademark as “any word, name, symbol, or device or any combination thereof used to identify and distinguish goods or services of one business from those of other undertakings”. As a result of the definition, there is no prerequisite for a nontraditional mark, such as sound or scent, to have a graphical representation. The Trademark Trial and Appeal Board in Re General Electric Broadcasting Co. held that to register a sound mark, the sound must be fundamentally so distinctive or unique that it connects to the listener, and when heard, it is associated with the specific product, service or source.

In contrast, India continues to follow graphical representation requirements in contrast to its counterparts European Union and the US. Rather than introducing statutory reforms indu continues to rely on limited administrative flexibility, thereby creating a difference between evolving branding practices and statutory text.

Conclusion 

The heightened awareness of nontraditional trademarks is an indication of a change in brand and intellectual property law. Various jurisdictions have also taken different methods of reform. The European Union has explicitly eliminated the requirement of the graphical representation, making it accommodating to technological evolution. By the Lanham Act, the United States has implemented a flexible model, and Singapore has re-balanced its language in laws while maintaining doctrinal protection. 

However, India still works through statutory language where language stresses the graphical representation requirement. Although the Trade Mark Rules, 2017 and Trademark registry practices are administrative, and are liberal in registering sound or any nontraditional trademark. Such a distinction between the textual continuity and procedural adaptation provokes conceptual uncertainty. The Indian legal regime must re-examine the graphical representation requirement on the basis of technologically neutral requirements. In addition, It should establish institutionalised procedures in investigating sensory and multimedia marks for granting a trademark. The changes in the Indian trademark regime would be able to align the Indian law with the world-developments and still maintain uniqueness and safeguarding of the consumers.

Author: Prathwiraj Kadam, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. Standard Business. “United Breweries Gets Sound Mark for ‘Oo La La La Le O’ Kingfisher Jingle.” https://www.business-standard.com/companies/news/united-breweries-gets-sound-mark-for-oo-la-la-la-le-o-kingfisher-jingle-126021901290_1.html.

2. “IHCL SECURES INDIA’S FIRST SOUND MARK REGISTRATION IN HOSPITALITY FOR ITS ICONIC BRAND TAJ.” https://www.ihcltata.com/press-room/ihcl-secures-indias-first-sound-mark-registration-in-hospitality.

3. The Trade Marks Act, 1999, Section 2(1)(m)

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